[Cites 11, Cited by 0]
Bombay High Court
Shivnanda Satyawan Karadbhaje vs Satyawan Aasaram Karadbhaje on 10 April, 2026
2026:BHC-AUG:15332
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 426 OF 2026
Sow. Shivnanda w/o Satyawan Karadbhaje,
Age - 40 years, Occu : Service,
R/o : Bhagwan Nagar, Georai,
Tq. Georai, Dist. Beed. ..Petitioner
VERSUS
Satyawan s/o Aasaram Karadbhaje,
Age - 40 years, Occu : Service,
R/o. Bhagwan Nagar, Georai,
Tq. Georai, Dist. Beed. ..Respondent
...
Advocate for the Petitioner : Mr. P.K. Lakhotiya
Advocate for Respondent : Mr. A.A. Nimbalkar
...
CORAM : S. G. CHAPALGAONKAR, J.
RESERVED ON : APRIL 06, 2026
PRONOUNCED ON : APRIL 10, 2026
JUDGMENT :
-
1. Rule. Rule made returnable forthwith and heard finally
with consent of parties.
2. The petitioner impugns order dated 01.12.2018 passed
by Civil Judge Senior Division, Beed in Hindu Marriage Petition
No.249 of 2014, whereby petitioner is directed to remain present
along with her son at Directorate of Forensic Science Laboratory,
Maharashtra State, Mumbai Kalina, Vidyutnagari, Santacruz (East),
Mumbai and to give blood and necessary samples as per convenient
date given by laboratory. The order further stipulates that petitioner
shall not be compelled to give any blood sample against her will.
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3. The respondent/husband instituted Hindu Marriage
Petition No.249 of 2014 before Civil Judge Senior Division, Beed
under Section 13(1)(i) of Hindu Marriage Act seeking decree of
dissolution of marriage. The sum and substance of contention in
petition is that marriage between petitioner and respondent was
solemnized on 13.12.2009 as per Hindu rights and customs. The
petitioner resided at matrimonial home only for a period of eight
days. The petitioner was constantly in contact with one Shivaji and
she expressed her love for him. The petitioner left home within eight
days of marriage and started residing at her matrimonial home. All
efforts to bring her back failed.
4. On 22.12.2010, she gave birth to a child. She had
suppressed pregnancy from respondent. The respondent claims that
he is not father of son born to petitioner. The respondent had noticed
petitioner in company of said Shivaji. On 27.12.2009, respondent has
seen petitioner in compromised position in a room along with Shivaji.
According to respondent, he is entitled for decree of divorce under
Section 13(1)(i) of Hindu Marriage Act.
5. The petitioner filed written statement and refuted
material averments in petition. In light of pleadings of parties, Trial
Court framed issues.
6. Issue no.1(c) reads as under :
"1(c) Does the petitioner proves that petitioner is not a father of
child which is born to by respondent no.1 on 22.12.2010 ?"
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7. In deference to aforesaid issue, respondent filed an
application below Exhibit-44 seeking order for DNA test to decide
paternity of child. The application was opposed by petitioner.
However on 01.12.2018, Trial Court passed following order :
"1) Application is hereby allowed.
2] Respondent Shivnanda Asaram Karadbhaje hereby directed
to remain present alongwith son Kaustubh at Directorate of
Forensic Science Laboratory, Maharashtra State, Mumbai
Kalina, Vidyutngari, Santacruz (East), Mumbai and to give the
blood and necessary samples as per convenient date given by
the laboratory.
3] Applicant is directed not to compel her to give any blood
sample against her will.
4] Respondent is hereby directed to file pursis regrading his
presence or absence before laboratory on record.
5] Disposed off as accordingly."
8. Eventually, petitioner filed pursis Exhibit-57 stating that
she is ready to present herself along with child for DNA test, but she
never presented herself before hospital authorities. Accordingly,
parties recorded evidence in trial. Meanwhile, Trial Court had passed
order dated 21.09.2016 below Exhibit-16 directing respondent to pay
interim maintenance towards minor child. The said order was
subjected to challenge in Writ Petition No.12010 of 2017 before this
Court. The Writ Petition came to be disposed on 06.09.2024 with
direction that petitioner to withdraw amount of maintenance
awarded to minor after compliance of order dated 01.12.2018 i.e.
impugned order in present petition. This Court has further directed
expeditious disposal of Hindu Marriage Petition. In aforesaid factual
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backdrop, petitioner raised challenge to impugned order in this
petition.
9. Mr. Lakhotiya, learned advocate appearing for petitioner
submits that petitioner could not challenge impugned order as she
was not well advised at relevant time. She had filed pursis to make
available herself along with child for DNA test at government
recognized hospital or institution under misconception of fact and
law. The direction compelling petitioner/wife and minor son to
undergo DNA test constitutes an unwarranted intrusion into their
bodily integrity, decisional autonomy and informational privacy,
which is duly recognized by Hon'ble Supreme Court in case of K.S.
Puttuswamy Vs. Union of India compelling an unwilling woman and
minor child to provide bodily samples violates right under Article 21.
Unless there is primary evidence to rebut presumption under Section
112 of Evidence Act, legitimacy of child cannot be questioned without
proof of non-access.
10. In support of his contention, he heavily relies upon
observations of Hon'ble Supreme Court in case of R. Rajendran Vs.
Kamar Nisha and Ors reported in AIR Online 2025 SC 1060, Ivan
Rathinam Vs. Milan Joseph reported in AIR 2025 SC 1004 and
Banarsi Das Vs. Teeku Dutta (Mrs) and Another reported in (2005) 4
SCC 449.
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11. Per contra, Mr. Nimbalkar, learned advocate appearing
for respondent raises serious objection to entertain present writ
petition on the ground of delay and laches. He submits that there is
no explanation for impugning order passed on 01.12.2018 after 7
years, particularly when petitioner had accepted order and assured
Court vide pursis Exhibit-57 to submit herself for DNA test along with
child. He points out divorce proceeding instituted by
respondent/husband is pending for last 13 years. On conclusion of
recording of evidence when matter was posted for final arguments,
present writ petition is filed only with intention to protract
proceedings. The respondent is put to burden to prove that he is not
father of child born to petitioner. Eventually, directions were given for
DNA test, however, respondent was directed not to compel her to give
her blood samples against her will. Eventually, respondent has not
taken any coercive steps compelling her to give blood samples and
recorded necessary evidence to discharge his burden. At this stage,
no interference is required. Mr. Nimbalkar, in support of his
contention relies upon observations of Hon'ble Supreme Court in case
of Balwant Singh (Dead) Vs. Jagdish Singh and Ors reported in AIR
2010 SC 3043, Pathapati Subba Reddy (Died) by Legal
Representatives and Others reported in (2024) 12 SCC 336, Mrinmoy
Maity Vs. Chhanda Koley and Ors reported in AIR 2024 SC 2717 and
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observations of High Court of Madhya Pradesh in case of Kamla Patel
Vs. Govind Bahadur reported in 2026 SCC Online MP 428.
12. Having considered rival contentions and on perusal of
record tendered into service, it can be observed that
respondent/husband has instituted proceeding under Section 13(1)(i)
of Hindu Marriage Act for dissolution of marriage. It is specifically
pleaded that after marriage petitioner and respondent resided
together hardly for eight days. Since then, she left company of
respondent and resided at matrimonial home. The respondent had
occasion to see petitioner in compromised position with a third
person. The petitioner had no access with respondent when she
conceived pregnancy. Eventually, respondent sought direction for
DNA test to establish wife's infidelity in order to support claim for
decree of divorce.
13. Apparently, objective of DNA test was not to prove
illegitimacy of child, although such question is incidental in
proceeding. It is trite that DNA test can be a mode to bring evidence
of infidelity without disturbing presumption under Section 112 of
Evidence Act. The DNA test itself cannot be used to declare
illegitimacy of child as long as presumption under Section 112
remains intact. In case where declaration as to legitimacy of child is
sought, the issue of non-access has to be proved with substantive
evidence and then only question of directing DNA test arises for
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consideration. However, in facts of present case where a decree of
divorce is sought on the ground of infidelity of wife, husband is
required to prove that wife had voluntarily inter-course with person
other than him.
14. Learned advocates appearing for respective parties have
relied upon catena of judgments on the issue as to whether
matrimonial Courts have power to direct DNA test. The issue has been
answered in affirmative with certain riders. It is left to discretion of
Courts to direct DNA test without compelling a party or child and rest
is left upon Courts to apply appropriate presumptions under law.
15. In light of aforesaid legal and factual matrix, this Court
requires to consider one more objection as to delay and laches pressed
into service on behalf of respondent. At this stage reference can be
given to observation of Supreme Court in case of Chennai
Metropolitan Water Supply & Sewerage Board and others v T.T.
Murali Babu, reported in (2014) 4 SCC 108, which reads thus :-
"16. Thus, the doctrine of delay and laches should not be
lightly brushed aside. A writ court is required to weigh the
explanation offered and the acceptability of the same. The
court should bear in mind that it is exercising an
extraordinary and equitable jurisdiction. As a constitutional
court it has a duty to protect the rights of the citizens but
simultaneously it is to keep itself alive to the primary
principle that when an aggrieved person, without adequate
reason, approaches the court at his own leisure or pleasure,
the court would be under legal obligation to scrutinise
whether the lis at a belated stage should be entertained or
not. Be it noted, delay comes in the way of equity. In certain
circumstances inordinate delay would only invite disaster
for the litigant who knocks at the doors of the court. Delay
reflects inactivity and inaction on the part of a litigant - a
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litigant who has forgotten the basic norms, namely,
"procrastination is the greatest thief of time" and second,
law does not permit one to sleep and rise like a phoenix.
Delay does bring in hazard and causes injury to the list."
16. The impugned order is passed on 01.12.2018 and same
has been challenged in the year 2026 in present writ petition. To
entertain or not to entertain writ petition on the ground of delay and
laches is again discretion left to writ Court. In appropriate cases,
dehors delay to make substantial justice, the Court may ignore the
same. However, in present case, this Court finds that petitioner had
accepted impugned order and assured Court to submit herself for
DNA test, however, ultimately refrained herself from presenting
before hospital authorities. In light of stipulations in impugned order,
no coercive steps were taken against her to secure blood samples.
Eventually, parties proceeded further to record evidence and when
matter reached to final stage, present writ petition is filed raising
challenge after 7 long year, probably apprehending adverse
presumption by Court. In light of aforesaid factual background, this
Court do not find any reason to entertain writ petition and disturb
order passed by Court in exercise of discretionary jurisdiction in facts
of present case. It is not the case that order is patently illegal or
without jurisdiction or refusal to entertain writ petition would result
manifest injustice to petitioner.
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17. Although, this Court is not entertaining writ petition, it is
necessary to observe here that issue before Trial Court is not
regarding legitimacy of child. But, DNA test of husband and son
could be vital evidence to prove infidelity of wife. Law requires
husband to prove that after solemnization of marriage, wife had
voluntary sexual intercourse with other person. So, unless husband
leads sufficient evidence on aforesaid aspect, coupled with evidence
as to non-access, presumption of adulterous behaviour cannot be
drawn only on the basis that wife failed to submit for DNA test. It is
trite that DNA test itself is not enough to rebut presumption under
Section 112 of the Act. If evidence depicts that husband and wife
lived together during time of conception, protection is offered by law
in favour of innocent child from being bastardise.
18. In light of aforesaid observations, writ petition stands
rejected.
(S.G. CHAPALGAONKAR, J.)
Mujaheed//
