Madras High Court
Titus vs Golda Glory on 7 October, 2025
Crl.RC(MD)No.914 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.10.2025
CORAM:
THE HONOURABLE MR.JUSTICE SHAMIM AHMED
Crl.RC(MD)No.914 of 2025
Titus, S/o.Krishnan, A2/258-A, Sector,
BHEL Township, Thiruverumbur, Trichy. Revision Petitioner
Vs
1. Golda Glory, D/o.Samuel, 452/80F,
Balaji Nagar, Aangarai Village, Lalgudi Circle, Trichy.
2. Minor T.Godson Wesley Jasiyel,
452/80F, Balaji Nagar, Aangarai Village,
Lalgudi Circle, Trichy
(represented by Natural Guardian Mother/R1) Respondents
Prayer:- This Criminal Revision Case has been filed, under Sections 438
and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to call
for the records, relating to the order dated, 12.06.2025 made in Cr.MP.No.
663 of 2024, by the Judicial Magistrate, Lalgudi and to set aside the same.
For Revision Petitioner : Mr. V.Nirmal Kumar
For Respondents : Ms.M.R.Preethi
ORDER
1. This Criminal Revision Case has been filed, to call for the records,
relating to the order dated, 12.06.2025, made in Cr.MP.No.663 of 2024,
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by the Judicial Magistrate, Lalgudi and to set aside the same.
2. The facts of the case, in a nutshell, as set out in the affidavit filed in
support of this Criminal Revision Case, led to filing of this Criminal
Revision Case and necessary for disposal of the same, are as follows:-
(a) It is alleged by the Revision Petitioner/Husband that though the
marriage between him and the 1st Respondent/Wife was solemnized
on 19.06.2018, according to Christian Rites and Customs, the
marriage between them was not consummated and that the 1st
Respondent was having illegal relationship with one Sivastephen
and that to his shock and surprise, the 1st Respondent stated that
only on compulsion by her parents, she married the Revision
Petitioner. It is also stated by the Petitioner that when on
16.08.2018, the Revision Petitioner took the 1st Respondent to
hospital for hair fall treatment, he came to know that the 1st
Respondent was pregnant and that when the Revision Petitioner
questioned her about the same, she stated that the child is not the
Revision Petitioner's.
(b) It is further stated by the Revision Petitioner that on 23.08.2018, the
mother and uncle of the 1st Respondent took the 1st Respondent,
locked the house and gave the keys to the brother of the Revision
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Petitioner and that on 26.08.2018, the uncle of the 1st Respondent
informed that the 1st Respondent was not willing to live with him
and requested to give divorce and that the minor male child/the 2nd
Respondent was born within nine months from the date of their
marriage, i.e. on 28.03.2019 and hence, he is not his son.
(c) The 1st Respondent has filed a maintenance Petition, under Section
125 of Cr.PC, against the Revision Petitioner in MC.No.11 of 2021
on 01.07.2021, before the Judicial Magistrate, Lalgudi and the
Revision Petitioner had also filed a counter affidavit in the said
maintenance Petition. In the said maintenance Petition, the Revision
Petitioner had filed an application in Crl.MP.No.663 of 2024, on
19.03.2024, seeking for DNA test to prove that the 2nd Respondent
was not born through him and the 1st respondent/wife had filed a
counter in the said application, seeking for DNA Test.
(d) By the impugned order, the Trial Court had dismissed the said
Petition/Application, seeking DNA Test, on the grounds that the
Revision Petitioner and the 1st Respondent were living as husband
and wife from the date of their marriage and that the Revision
Petitioner has failed to prove by furnishing valid evidence that the
Revision Petitioner had no access with the 1st respondent during the
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relevant point of time. As against the same, the Revision Petitioner
herein, has filed the present Criminal Revision Case on 21.07.2025.
3. This court heard Mr.V.Nirmal Kumar, the learned counsel for the
Revision Petitioner and Ms.M.R.Preethi, the learned counsel for the
Respondents and considered their submissions and also perused the
entire materials available on record.
4. The learned counsel for the Revision Petitioner has submitted that when
the marriage itself was not consummated and there was no access
between the Revision Petitioner and the 1st Respondent, during the
relevant period of time, it cannot be stated that the 2nd Respondent was
born through him and that in order to prove that there was no access
between them, DNA test of both the Revision Petitioner and the
Respondents is necessary and thus, an application, seeking DNA test to
prove the paternity of the child in the matrimonial proceedings, is
maintainable. The learned counsel has further submitted that the Trial
Court erred in passing the impugned order, while rejecting the
application of the Revision Petition for DNA Test, as it did not consider
the facts of the matter and thus, the learned counsel prays for allowing
this Criminal Revision Case.
5. Per contra, the learned counsel for the Respondents has submitted that
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since the 2nd Respondent was born during the subsistence of the
marriage of the 1st Respondent with the Revision Petitioner, the 2nd
Respondent is presumed to be the legitimate son of the Revision
Petitioner and hence, the DNA Test, as prayed for by the Revision
Petitioner, cannot be ordered and if ordered, it will infringe their
fundamental rights and right to privacy.
6. The admitted facts are that the Revision Petitioner and the 1st
Respondent are husband and wife, by virtue of the marriage performed
between them on 19.06.2018. The 2nd Respondent was born on
28.03.2019. The maintenance case in MC.No.11 of 2021 was filed by
the 1st Respondent on 01.07.2021. The present Petition, seeking for
DNA test was filed on 19.03.2024 and it was rejected, by the impugned
order on 12.06.2025. This Criminal Revision Case was filed on
21.07.2025.
7. The case of the Revision Petitioner is that the minor male child/the 2nd
Respondent did not born through him and in order to prove his case,
DNA test is necessary. According to the 1st Respondent, the 2nd
Respondent was born through the Revision Petitioner, during the
subsistence of their marriage, at the relevant point of time.
8. Considering the arguments advanced by the learned counsel for the
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Revision Petitioner and the Respondents and after perusal of the
records, now the legal question involved in the present Criminal
Revision Case filed under Sections 438 and 442 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS) is relating to examination of certain
scientific techniques and principles for adjudication of birth status of the
2nd Respondent herein, namely, DNA (Deoxyribonucleic Acid) Test so
that the Courts/Investigating Agencies may arrive at a fair conclusion.
9. To understand this aspect, it is necessary to examine the ratio of balance
between efficient investigation and individual rights. Accordingly, Law,
Science and Technology have a great relevance in our lives. Law and
Science encounter each other in many ways. When technology intrudes
in the ambit of legal rights, it is checked by law, for example, cyber
crimes, in the same manner to protect legal rights and strengthening the
evidence with the help of science, cannot be denied.
10.At present days, when the legal system has so much advanced,
criminals/litigants/individuals take care to erase all the evidences of
their involvement, then in such case, scientific and highly sophisticated
methods are required to trace the involvement of criminals/litigants/
individuals. Narcoanalysis, Polygraphy and Brain Mapping tests
collectively called deception detection tests (DDT) are new kinds of
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interrogation techniques including the DNA Test (Deoxyribonuclie
Acid), which are simple and civilized way of conducting investigation.
But, at the same time, one has to be conscious of its limitations also. It
infringes fundamental rights under Article 20(3) of the Constitution of
India and also right to privacy and right to health, which are guaranteed
under Article 21 of the Constitution of India.
11.In spite of the verily limitations, it affirms certain attributes also which
includes: ''order of court', ''pre-consent of subject' ''non-manipulated
statements by subject' and ''secure public interest' Thus, there is a
tension between desirability of efficient investigation and preservation
of individual rights.
12.Let us understand briefly the Concept Of Investigation:-
In order to study about the investigation, we need to understand the
term ''investigation'.
● "Investigation” means to examine, study, or inquire into
systematically, search or examine into the particulars of; examine in
detail, or, to search out and examine the particulars of in an attempt
to learn the facts about something hidden, unique, or complex,
especially in an attempt to find a motive, cause, it is about finding
things.
13.According to Section 2(1)(l) of Bharatiya Nagarik Suraksha Sanhita,
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2023 (BNSS)," investigation includes all the proceedings under this
Sanhita for the collection of evidence conducted by a police officer or
by any person (other than a magistrate) who is authorized by a
Magistrate in this behalf. Investigation, under the BNSS includes:-
1. Proceeding to the spot of crime.
2. Ascertaining the facts and circumstances of the case.
3. Discovery and arrest of the suspected offenders.
4. Collection of evidence,
● examination of various persons including the accused and
recording their statements in writing.
● Search of places or seizures of things which are considered
necessary.
14.Criminal Investigation is an applied science that involves the study of
facts, used to identify, locate and prove the guilt of a criminal. A
complete criminal investigation can include searching, interviews,
interrogations, evidence collection and preservation and various
methods of investigation. Modern day criminal investigations commonly
employ many modern scientific techniques known collectively as
forensic science.
15.Application of science and technology in criminal investigation is
also an important issue to be considered:-
The search for effective aids to interrogation is probably as old as man's
need to obtain information from an uncooperative source and as
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persistent as his impatience to shortcut any tortuous path. In the annals
of police investigation, physical coercion has at times been substituted
for painstaking and time consuming inquiry in the belief that direct
methods produce quick results. The use of technology in the service of
criminal investigations, and the application of scientific techniques to
detect and evaluate criminal evidence has advanced the investigation
process criminal justice system throughout the country. According to
Cowan in his article "Decision Theory in Law, Science, and
Technology",
"the aim of science, traditionally put, is to search out the ways
in which truth may become known. Law aims at the just
resolution of human conflict. Truth and justice, we might
venture to say, having different aims, use different methods to
achieve them. Unfortunately, this convenient account of law
and science is itself neither true nor just. For law must know
what the truth is within the context of the legal situation: and
science finds itself ever engaged in resolving the conflicting
claims of theorists putting forward their own competing
brands of truth."
16.This quote roughly means that the law needs to find the truth to resolve
"human conflict" and one method of doing so is to use the field of
science. Today's society has improved upon the methods of the past to
bring about more precise and accurate techniques. Forensic Science has
expanded to Trauma Inducing Drugs and Psychotropic Substances. The
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application of science to matters of law has made great strides in recent
years. Development of new tools of investigation has led to the
emergence of scientific tools of interrogation. Before analyzing these
techniques it will be necessary and useful to frame and consider the
question of law in this case.
17.What is DNA:-
● Here's a look at what DNA is made of, how it works, who discovered it
and other interesting DNA facts. As per the writer Rachael Rettner,
DNA stands for deoxyribonucleic acid, which is a molecule that
contains the instructions an organism needs to develop, live and
reproduce. These instructions are found inside every cell and are
passed down from parents to their offspring.
● DNA is made up of molecules called nucleotides. Each nucleotide
contains a phosphate group, a sugar group and a nitrogen base. The
four types of nitrogen bases are adenine (A), thymine (T), guanine (G)
and cytosine (C).
● Nucleotides are attached together to form two long strands that spiral
to create a structure called a double helix. The double-helix structure as
a ladder, the phosphate and sugar molecules would be the sides, while
the base pairs would be the rungs. The bases on one strand pair with
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the bases on another strand: Adenine pairs with thymine (A-T), and
guanine pairs with cytosine (G-C).
● Human DNA is made up of around 3 billion base pairs, and more than
99% of those bases are the same in all people, according to the U.S.
National Library of Medicine (NLM).
● Similar to the way the order of letters in the alphabet can be used to
form words, the order of nitrogen bases in a DNA sequence forms
genes, which, in the language of the cell, cells tell how to make
proteins. The shorthand for this process is that genes "encode"
proteins. But DNA is not the direct template for protein production. To
make a protein, the cell makes a copy of the gene, using not DNA but
ribonucleic acid, or RNA. This RNA copy, called messenger RNA,
tells the cell's protein-making machinery which amino acids to string
together into a protein, according to "Biochemistry" (W. H. Freeman
and Company, 2002).
● DNA molecules are long -- so long, in fact, that they can't fit into cells
without the right packaging. To fit inside cells, DNA is coiled tightly
to form structures called chromosomes. Each chromosome contains a
single DNA molecule. Humans have 23 pairs of chromosomes, which
are found inside each cell's nucleus.
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● Rosalind Elsie Franklin (1920-1958) was a British chemist and
crystallographer who is best known for her role in the discovery of the
structure of DNA. DNA was first observed by Swiss biochemist
Friedrich Miescher in 1869, according to a paper published in 2005 in
the journal Developmental Biology. Miescher used biochemical
methods to isolate DNA -- which he called nuclein -- from white blood
cells and sperm, and determined that it was very different from protein.
(The term "nucleic acid" derives from "nuclein.") But for many years,
researchers did not realize the importance of this molecule.
18.How does DNA function?
● Genes encode proteins that perform all sorts of functions for humans
(and other living beings). The human gene HBA1, for example,
contains instructions for building the protein alpha globin, which is
a component of haemoglobin, the oxygen-carrying protein in red
blood cells.
● DNA sequencing involves technology that allows researchers to
determine the order of bases in a DNA sequence. The technology
can be used to determine the order of bases in genes,
chromosomes or an entire genome.
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19.The question is whether the DNA Test infringes the fundamental rights
under Article 20(3) and also right to privacy and right to health, which
are guaranteed under Article 21 of the Constitution of India.
20.A person's DNA contains information about their heritage, and it can
sometimes reveal whether they are at an elevated risk for certain
diseases. DNA tests, or genetic tests, are used for a variety of reasons,
including to diagnose genetic disorders, to determine whether a person
is a carrier of a genetic mutation that they could pass on to their children
and to examine whether a person is at risk for a genetic disease.
21.Genetic test results can have implications for a person's health, and the
tests are often provided along with genetic counseling to help
individuals understand the results and consequences. People also use the
results of genetic testing to find relatives and learn about their family
trees.
22.The Constitution of India guarantees every person right against self
incrimination under Article 20(3) of the Indian Constitution "No person
accused of any offence shall be compelled to be a witness against
himself."
23.Thus, Right to Privacy is implicit in the Right to life and liberty
guaranteed to the citizens of India by Article 21 of the Constitution of
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India. None can publish anything covering the above matters without his
consent whether truthful or otherwise and whether laudatory or critical.
If done so, it will be violating right to privacy of person concerned and
would be liable in an action for damages.
24.In reference to the above findings, reliance is being placed on paragraph
nos.6,7,8,9,10 and 11 of the judgement passed by Kerala High Court in
Crl.Rev.Pet.No.2329 of 2012, Abdurahiman vs. State of
Kerala (decided on 10th July, 2013), wherein the Court was pleased to
observe as under:-
“6. Learned Public Prosecutor contended that the question of
paternity does not arise for consideration in an allegation of
rape. It is not the paternity of the child that is in issue, but the
question is whether the victim has been sexually assaulted. Even
assuming that the DNA test goes against the victim, it does not
mean that no sexual assault has been committed by the accused.
Viewed from any angle, according to the learned Public
Prosecutor, there is no scope for DNA test in a trial of a case of
rape.
7. The learned Public Prosecutor relied on the decision reported
in Babu v. State of Kerala [2013 (2) KHC 526] and pointed out
that this Court has elaborately considered the necessity to
conduct the DNA test in a case of rape and has come to the
conclusion that even assuming that the DNA test is against the
accused, that by itself is not a clinching evidence and that has
no relevance in determining whether the act committed amounts
to a rape or not. In the light of the principle laid down in the
said decisions, according to the learned Public Prosecutor,
claim made for DNA test has no basis.
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8. True, normally, the court will not, as a matter of fact, shut out
the evidence which enables the court to determine the truth. But
to say that a DNA test is the necessity in a case of rape cannot
be accepted. True, in the case on hand, from the deposition
produced along with the Petition of the defacto complainant, it
is seen that she has a case of only a solitary instance of sexual
intercourse with the accused as a result of which she claims to
have been conceived. This aspect is highlighted by the learned
counsel for the Petitioner that the DNA test is the issue and that
should have been allowed.
9. As already noticed, it is not the paternity that is in issue, but
whether the act was committed by the accused, and if the act
was committed by the accused, whether there was any consent
on the part of the victim. Even assuming that the DNA test goes
against the defacto complainant, that by itself may not be a
ground to hold that the incident has not taken place as alleged
by the victim. Sections 7 and 11 on which considerable reliance
is placed by the learned counsel for the Petitioner, have no
application to the facts of the case. They deal with different
circumstances and situations altogether. The learned counsel try
to contend that the effect of sexual assault is impregnation and
therefore, DNA test is relevant. It is not such an act which is
contemplated by Sections 7 and 11 as could be clear from the
illustrations provided by these Sections. The argument based
on Sections 7 and 11 is misconceived.
10. True, in the decisions reported in State of Kerala v.
Ayoob [2005 (2) KLT 441], the court has indicated the
relevance of the DNA test. In the decision reported in Krishan
Kumar Malik v. State of Haryana [2011 (7) SCC 130], in
paragraph 45, it is held as follows:
"45. We have also gone through the orders of dismissal passed
by this Court in Crl MP No. 9646 on 15.06.2009 as also of the
review Petition dated 5.11.2009 filed by Smt. Hardevi.
Admittedly, the said orders passed in the SLP and the review
Petition by this Court did not assign any reasons for the
dismissal, thus it would not be proper and safe for us to place
reliance thereon."
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11. Apart from the fact that in relation to the new provision of
Section 53 (A) in Cr.P.C., that decision cannot be taken to lay
down principle that in case of rape, DNA test is a must. This
Court in the decision referred to by the learned Public
Prosecutor has considered the issue elaborately and has held
that it is not necessary to go for a DNA test nor can that the
result of DNA test is conclusive either way. If that be so, there is
no merit in the contention that if the DNA test goes in favour of
the Petitioner, he would be exonerated. As rightly pointed out by
the learned Public Prosecutor, the issue is one whether the act is
alleged to have been committed by the Petitioner is with consent
or not and not whether the child is that of the Petitioner.
Following the principles laid down in the decision rendered by
the Division Bench of this Court referred to by the learned
Public Prosecutor, it is held that the court below was justified in
declining to grant relief to the Petitioner for DNA test though
for different reasons.”
25.The DNA evidence, no doubt has the ability to increase the accuracy of
verdicts in trials. But this does not mean that we should be complacent
about its use and presentation. DNA will create a comprehensive
database eventually resulting in a human data bank of DNA publicly
accessible and tremendously utilized in investigations.
26.In the present case, the marriage between the parties was performed on
19.06.2018. It is not stated by the Revision Petitioner as to the date of
birth of the 2nd Respondent, however, it is stated by him that the 2nd
Respondent was born within nine months from the date of their
marriage. However, it is stated by the 1st Respondent that the 2nd
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Respondent was born on 28.03.2019.
27.It is the main contention of the Revision Petitioner that since the
marriage between them was not consummated, the 2nd Respondent was
not his son, as he had no access to the 1st Respondent during the
relevant period of time, for which, this Court finds no materials to prove
the non access.
28.The further contention of the Revision Petitioner that since the 2nd
Respondent was born within nine months from the date of their
marriage, the 2nd Respondent is not his son, cannot also be accepted,
since it is common nowadays that children are born even within seven
to nine months. Thus, the contention of the 1st Respondent that nine
months period is sufficient to give birth to a child, is sustainable and
accordingly, it can be safely held that the 2nd Respondent was born to
the Revision Petitioner during the subsistence of their marriage.
29.It is seen that the marriage between the parties was performed on
19.06.2018. The 2nd Respondent was born on 28.03.2019. Though,
during the course of arguments, it is stated by the learned counsel for
the Revision Petitioner that he had filed a divorce case against the 1st
Respondent, this Court finds no materials in support of the said
contention. Though the maintenance case in MC.No.11 of 2021 was
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filed by the 1st Respondent on 01.07.2021, the present Application for
DNA Test was filed on 19.03.2024, belatedly after more than two and
half years. Probably, the divorce case might have been filed much
earlier before filing of the said maintenance case, thereby causing more
delay in filing the present application, seeking DNA Test. The Revision
Petitioner ought to have approached the Court at the initial stage itself.
At least, the application, seeking DNA Test ought to have been filed
immediately after filing of the said maintenance case. Apparently, there
is a lapse of more than two and half years. No satisfactory explanation
has been given by the Revision Petitioner for such an inordinate delay.
30.As per Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, any
person born during the continuance of a valid marriage between his
mother and any man, or within two hundred and eighty days after its
dissolution, the mother remaining unmarried, shall be conclusive proof
that he is the legitimate child of that man, unless it is shown that the
parties to the marriage had no access to each other at any time when he
could have been begotton.
31.The language of the said provision makes it clear that there exists a
strong presumption that the husband is the father of the child borne by
his wife during the subsistence of their marriage. The object of this
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principle is to prevent any unwarranted enquiry into the paternity of a
child.
32. In the present case, as stated above, the Revision Petitioner has failed
to establish non-access. No material has been placed before this Court to
disprove access between them in the relevant period before the birth of
2nd Respondent.
33.The Honourable Supreme Court, in its judgement, dated 28.01.2025,
made in Crl.A.No.413 of 2024 (Ivan Rathinam Vs Milan Joseph)
(2025 INSC 115) , has clearly held that DNA tests cannot be directed,
unless a strong prima facie case is made out and that such tests should
not be ordered as a matter of routine. Courts must be cautious in
directing DNA tests, as such orders can have far reaching effects on the
dignity and privacy of individuals. For better appreciation, it is
necessary to mention the relevant portion of the judgement as under:-
“30. It is only when such an assertion is made, that the court
can consider the question of ordering a DNA test to establish
paternity. In Goutam Kundu v. State of W.B. 1993 (3) SCC 418.
(supra), this Court laid down the following parameters to
decide whether a court can order a DNA test for the purposes
of Section 112:-
(1) that courts in India cannot order blood test as a matter of
course;
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(2) wherever applications are made for such prayers in order
to have roving inquiry, the prayer for blood cannot be
entertained.
(3) There must be a strong prima facie case in that the husband
must establish non- access in order to dispel the presumption
arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the
consequence of ordering the blood test; whether it will have the
effect of branding a child as a bastard and the mother as an
unchaste woman.
(5) No one can be compelled to give sample of blood for
analysis.
.................
“70. Accordingly, we deem it appropriate to allow this appeal
and set aside the Impugned Judgment of the High Court dated
21.05.2018 and of the Family Court dated 09.11.2015, with the
following directions and conclusions:-
i. Legitimacy determines paternity under Section 112 of the
Indian Evidence Act, 1872, until the presumption is successfully
rebutted by proving ‘non-access’;
ii. The Munsiff Court and the Sub-Judge Court possessed
jurisdiction to entertain the Original Suit, which dealt with the
question of the legitimacy of the Respondent;
iii. The Family Court, Alappuzha erred in reopening the
Maintenance Petition when the self-imposed condition was not
satisfied; iv. The impugned proceedings, initiated by the
Respondent, are barred by the principle of res judicata;
v. The proceedings in MC No. No. 224/2007 before the Family
Court, Alappuzha stand quashed;
vi. Any claim by the Respondent based upon the perceived
relationship of paternity qua the Appellant, stands negated; and
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vii. The Respondent is presumed to be the legitimate son of Mr.
Raju Kurian.
71. The instant appeal is allowed in the above terms.”
34.The Hon'ble Supreme Court, in Criminal Appeal No.1267 of 2004,
Smt. Selvi and others vs. State of Karnataka (decided on 5th May,
2010) was pleased to observe in paragraph nos. 221, 222 and 223 of the
judgement, as under:-
“221. In our considered opinion, the compulsory administration
of the impugned techniques violates the `right against self-
incrimination'. This is because the underlying rationale of the
said right is to ensure the reliability as well as voluntariness of
statements that are admitted as evidence. This Court has
recognised that the protective scope of Article 20(3) extends to
the investigative stage in criminal cases and when read
with Section 161(2) of Cr.PC, 1973 it protects accused persons,
suspects as well as witnesses who are examined during an
investigation. The test results cannot be admitted in evidence if
they have been obtained through the use of compulsion. Article
20(3) protects an individual's choice between speaking and
remaining silent, irrespective of whether the subsequent
testimony proves to be inculpatory or exculpatory. Article
20(3) aims to prevent the forcible `conveyance of personal
knowledge that is relevant to the facts in issue'. The results
obtained from each of the impugned tests bear a `testimonial'
character and they cannot be categorised as material evidence.
222. We are also of the view that forcing an individual to
undergo any of the impugned techniques violates the standard
of `substantive due process' which is required for restraining
personal liberty. Such a violation will occur irrespective of
whether these techniques are forcibly administered during the
course of an investigation or for any other purpose since the
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test results could also expose a person to adverse consequences
of a non-penal nature. The impugned techniques cannot be read
into the statutory provisions which enable medical examination
during investigation in criminal cases, i.e. the Explanation
to Sections 53, 53A and 54 of Cr.PC, 1973. Such an expansive
interpretation is not feasible in light of the rule of `ejusdem
generis' and the considerations which govern the interpretation
of statutes in relation to scientific advancements. We have also
elaborated how the compulsory administration of any of these
techniques is an unjustified intrusion into the mental privacy of
an individual. It would also amount to `cruel, inhuman or
degrading treatment' with regard to the language of evolving
international human rights norms. Furthermore, placing
reliance on the results gathered from these techniques comes
into conflict with the `right to fair trial'. Invocations of a
compelling public interest cannot justify the dilution of
constitutional rights such as the `right against self-
incrimination'.
223. In light of these conclusions, we hold that no individual
should be forcibly subjected to any of the techniques in
question, whether in the context of investigation in criminal
cases or otherwise. Doing so would amount to an unwarranted
intrusion into personal liberty. However, we do leave room for
the voluntary administration of the impugned techniques in the
context of criminal justice, provided that certain safeguards are
in place. Even when the subject has given consent to undergo
any of these tests, the test results by themselves cannot be
admitted as evidence because the subject does not exercise
conscious control over the responses during the administration
of the test. However, any information or material that is
subsequently discovered with the help of voluntary administered
test results can be admitted, in accordance with Section 27 of
the Evidence Act, 1872.”
35.The Honourable Supreme Court, in its judgement, dated 20.02.2023,
made in SLP(C)No.9855 of 2022 (Aparna Ajinkya Firodia Vs.
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Ajinkya Arun Firodia), was pleased to observe as under:-
26.The case of the Respondent-husband is that if a DNA test is
allowed and the same reveals that he is not the biological
father of Arjun, as a corollary, it would be proved that the
Appellant-wife committed adultery. We do not find favour with
the approach suggested by the Respondenthusband to prove
adultery, for the following reasons:-
i. It is not in dispute that Master Arjun, the son stated to be
born to the Appellant-wife from the wedlock, was born in the
year 2013. DNA testing, cannot be used as a short cut to
establish infidelity that might have occurred over a decade ago
or subsequently after the birth of Master Arjun.
ii. In the circumstances of the present case, we are unable to
accept that a DNA test would be the only way in which the
truth of the matter can be established. The respondent-husband
has categorically claimed that he is in possession of call
recordings/transcripts and the daily diary of the appellant,
which may be summoned in accordance with law to prove the
infidelity of the appellant. Therefore, it seems to us that the
respondent is in a position to attempt to make out a case based
on such evidence, as to adultery/infidelity on the part of the
appellant.
iii. No plea has been raised by the respondent-husband herein
as to non-access in order to dislodge the presumption under
Section 112 of the Evidence Act. Therefore, no prima-facie
case has been made out by the respondent which would justify
a direction to conduct a DNA test of Master Arjun.
iv. No adverse inference can be raised in the instant case
regarding the legitimacy or paternity of Master Arjun vis-à-vis
the appellant herein, on her declining to subject Master Arjun
to a paternity test. Further, on the appellant declining to
subject Master Arjun to a paternity test, no adverse inference
can be drawn as regards the alleged adultery on the part of the
appellant herein can be raised. In our view, the allegation of
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adultery has to be proved by the respondent herein de hors the
issue of paternity of Master Arjun.
27. In the result, the present appeal is allowed. Consequently,
the impugned judgment of the High Court of Judicature at
Bombay dated 22 nd November, 2021 and the order of the
Family Court, Pune dated 12 th August, 2021, are set aside.”
36.By applying the above said principles, laid down by the Honourable
Supreme Court and the High Court, in the present case, this Court does
not find any strong prima facie case to allow the request for DNA
testing. Further, the Revision Petitioner has not produced a single piece
of documentary evidence before this Court to even prima facie support
his claim that he is not the biological father of the 2nd Respondent. In
the absence of any such evidence, this Court finds it difficult to even
presume that a prima facie case exists. As held by the Honourable
Supreme Court, DNA tests cannot be ordered merely on vague
allegations unless a strong prima facie case is established.
37.It is further observed that these psycho-medical tests are violative in
character, but, at the same time, individual interest cannot be placed
above collective interest. Let us fulfil the dream of having crime free
society and the maxim "Jura publica anteferendaprivatis juribus"
should be followed meaning thereby "public rights are to be preferred
to private rights whenever there being a dilemma between individual
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liberties and security of public interest. The Forensic science is defined
as the application of science in answering questions that are of legal
interest. More specifically, forensic scientists employ techniques and
tools to interpret crime scene evidence, and use that information in
investigations.
38.In the present case, it is also seen that Revision Petitioner has remained
completely silent from 2021 until 2024, the year in which the Revision
Petitioner filed the present DNA application. No reasonable or
acceptable explanation has been provided as to why the Revision
Petitioner remained silent for nearly two and half years after filing of
the MC.No.11 of 2021 for maintenance, before the Judicial Magistrate,
Lalgudi, by the 1st Respondent. His complete silence for the said period
only raises further doubts on the genuineness of claim of the Revision
Petitioner that he is not the father of the minor male child/the 2nd
Respondent.
39.Moreover, it is well settled by the Honourable Supreme Court and the
High Court that a DNA test, though a scientific tool, intrudes into the
personal domain and has the potential to violate the right to privacy
guaranteed under Article 21 of the Constitution. In sensitive matters
involving allegations of paternity, such tests cannot be ordered as a
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matter of course. Unless the Revision Petitioner satisfies the initial
burden of proof and establishes a strong prima facie case, such an
intrusive test cannot be permitted. In the present case, this initial
requirement has not been met.
40.In the circumstances of the present case, this Court is unable to accept
that a DNA test would be the only way, in which the truth of the matter
can be established. The DNA Testing cannot be used as a short cut
method to establish infidelity that might have occurred over a decade
ago or subsequently after the birth of the minor male child/the 2nd
Respondent. The question whether a DNA Test should be permitted on
the child is to be analysed through the prism of the child and not through
the prism of the parents. The child cannot be used as a pawn to show
that the mother of the child was living in adultery. It is always open to
the husband to prove by other evidence the adulterous conduct of the
wife, but the child's right to identity should not be allowed to be
sacrificed. Further, in the context of the present case, this Court is of
the view that the DNA Test, as prayed for by the Revision Petitioner,
will infringe the fundamental rights of the Respondents.
41.Therefore, this Court is of the firm view that the Revision Petitioner has
not made out any sufficient cause or legal justification to allow the
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prayer sought for under Section 39 of the Bharatiya Sakshya Adhiniyam.
The delay in filing, failure to prove non-access and the legal
presumption under Section 116 of the Bharatiya Sakshya Adhiniyam,
2023, all weigh heavily against the Revision Petitioner.
42.In the present case, this Court finds that the Revision Petitioner, only
with a view to humiliate his wife and to defame her name and to protract
the maintenance case filed by his wife, has come forward with this
frivolous Criminal Revision Case. This Court is of the view that the
Revision Petitioner has failed to establish a prima facie case for
directing a DNA test. The long and unexplained delay of nearly two and
half years, absence of any documentary or supporting material, the legal
presumption of legitimacy under Section 116 of the Bharatiya Sakshya
Adhiniyam, 2023, and the privacy concerns involved all weigh heavily
against the claim of the Revision Petitioner. Therefore, no case is made
out by the Revision Petitioner for interference by this Court exercising
power under Sections 438 and 442 of Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS) for the relief claimed. The Trial Court had rightly
dismissed the case of the Revision Petitioner by the impugned order,
dated 12.06.2025, by a reasoned and speaking order.
43.In view of the above said discussions and in the light of the decisions
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referred to above, the prayer in the present case for quashing of the
impugned order dated, 12.06.2025, made in Cr.MP.No.663 of 2024, by
the Judicial Magistrate, Lalgudi, refusing to give a direction to conduct
the DNA Test, as prayed for by the Revision Petitioner, is liable to be
rejected, as there is no merit in this Criminal Revision Case filed by the
Revision Petitioner.
44.In the result, this Criminal Revision Case is dismissed. There is no
order as to costs.
07.10.2025
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
Neutral Citation
Srcm
To
1. The Judicial Magistrate, Lalgudi
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SHAMIM AHMED, J.
Srcm
07.10.2025
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