NON-  REPORTABLE

        IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7018 OF 2009 (Arising out of SLP (C) No. 27770 of 2008)

Ramkanya Bai                …Appellant

Versus

Bharatram                                …Respondent

J U D G M E N T      

TARUN CHATTERJEE, J.

1. Leave granted.   

2. This appeal is directed against the Judgment and order  

dated  26th of  June,  2008 passed by  the  High Court  of  

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Madhya Pradesh at Indore Bench in IA No. 803 of 2007,  

which arose in  a pending first  appeal,  which has been  

filed  against  the  Judgment  and  order  dated  7th of  

December,  2006  passed  by  the  Additional  District  and  

Session Judge,  District  Mandsor,  Madhya Pradesh.   In  

the impugned order in the pending first appeal, the High  

Court had directed DNA test of the child of the parties to  

be performed.   

3. The facts leading to the filing of this appeal in this Court  

are as follows :-

The marriage of the wife/appellant was solemnized with  

the  husband/respondent  on  20th of  April,  1999.   But  after  

sometime,  the  husband/respondent  started  harassing  the  

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wife/appellant  on  various  issues  and  she  was  subjected  to  

cruelty and eventually, she was turned out of her matrimonial  

home.   In  the  year  2004,  the  husband/respondent  filed  an  

application being HMA No. 7(C) of 2004 under Section 13 of  

the Hindu Marriage Act in the Court of Additional District and  

Session Judge, District Mandsor, Madhya Pradesh.  However,  

a child was born in the month of November, 2004 to the parties.  

The parties entered appearance and issues were framed and  

finally, the trial Court, by its Judgment and decree dated 7th of  

December,  2006,  dismissed  the  petition  filed  by  the  

husband/respondent  against  which,  the  husband/respondent  

had filed an appeal before the High Court of Madhya Pradesh  

at Indore Bench under Section 28 of the Hindu Marriage Act.  

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As noted hereinearlier, the said appeal is pending decision in  

the High Court.   

4. In the said pending appeal, an application was made by  

the husband/respondent for an order to perform DNA test of the  

child born in the month of November, 2004 on the ground that  

such child  could  not  be taken to  be a  child  born  out  of  the  

wedlock of the parties.  It was the appellant who objected to this  

application stating  inter  alia that  the child was born from the  

wedlock of the parties and it was also brought to the notice of  

the High Court that the husband/respondent did not deny the  

paternity of the child while the suit was pending before the trial  

Court.   The High Court,  by the impugned order,  allowed the  

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said  application  of  the  husband/respondent  by  making  the  

following observation :

“However,  since  the  appellant  has  made  a   prestige issue and it appears to this Court that   in case in DNA test if it is found that the son of   the Respondent is from the appellant then the   family can be re-united.”          

5. On a plain reading of the impugned order, it is also evident  

that  the  High  Court  has  allowed  the  prayer  of  the  

husband/respondent  for  performing  the  DNA  test  of  the  child  

without  looking  to  the  facts  and  circumstances  of  the  present  

case and without looking into the question of law that may be  

raised in the matter.   

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6. Feeling  aggrieved  by  this  Order,  the  wife/appellant  has  

come up to this Court by way of a Special Leave Petition, which  

on grant of leave, was heard in presence of the learned counsel  

for the parties.   

7. We have  heard  the  learned  counsel  for  the  parties  and  

examined the impugned order of the High Court as well as the  

Judgment of the trial Court, by which the application for grant of  

divorce filed under Section 13 of the Hindu Marriage Act by the  

husband/respondent was dismissed.    

8. We are unable to accept the impugned order of the High  

Court.   The  High  Court  was  not  justified  in  allowing  the  

application for grant of DNA test of the child only on the ground  

that there will be a possibility of re-union of the parties if such  

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DNA test was made and if it was found from the outcome of the  

DNA test that the son was born out of the wedlock of the parties.  

In  the  absence  of  any  reason  except  on  the  ground  that  the  

husband/respondent  had  made  a  prestige  issue  about  the  

paternity of the child, nothing could be found from the impugned  

order of the High Court which could invite the Court to allow such  

application.   

9. On a perusal  of  the application for  grant  of  an order for  

DNA test of the child, it would also be evident that there was no  

allegation  made  by  the  husband/respondent  that  as  a  

consequence  of  illicit  relationship  with  some third  person,  the  

child was born to the wife/appellant.   Apart  from that,  it  is  an  

admitted  position  that  during  the  pendency  of  the  divorce  

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proceedings  in  trial  Court,  neither  such  prayer  for  performing  

DNA test to find out the paternity of the child was ever made by  

the  husband/respondent  nor  any  allegation  in  the  plaint  was  

made by him in his pleading.  Therefore, it was not open to the  

High Court at the appellate stage to direct the DNA test to be  

performed on the child of the wife/appellant.  It is also well settled  

that the presumption of legitimacy is a presumption of law. When  

a child is born out of a wedlock, there is a presumption in favour  

of his legitimacy and presumption of legitimacy largely depends  

on  the  presumed  fact  that  the  parties  to  a  marriage  have  

necessary access to each other when a divorce petition is filed  

and specially, when the husband/respondent did not assert that  

the  son  of  the  wife/appellant  was  a  consequence  of  illicit  

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relationship  with  some  third  person.   The  High  Court,  in  the  

impugned  order,  has  also  observed  that  the  son  of  the  

wife/appellant has begotten from the husband/respondent, which  

cannot be disputed at this stage on the basis of mere desire of  

the husband/respondent to deny such paternity of the child.   

10. For the reasons aforesaid, the impugned order is set aside  

and the application of DNA test to be performed on the child of  

the wife/appellant is hereby rejected.  Considering the facts and  

circumstances of the case, we request the High Court to dispose  

of  the  pending  appeal  at  an  early  date,  preferably  within  six  

months from the date of supply of a copy of this order to it.   

11. The appeal is thus allowed.  There will be no order as to  

costs.       

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   …………… …………J.     [Tarun  

Chatterjee]

New Delhi;             ………………………J. October 22, 2009                  [R. M.  

Lodha]

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