Legal provisions involved: Section 122 of Indian Evidence Act,  Section 13-B of Hindu Marriage Act, 1955, Section 13 of the Hindu Marriage Act,  Section 114 of the Evidence Act

Judgement by: Madhya Pradesh High Court

Judge/Bench: Justice Vivek Jain.

Facts

The husband filed a divorce case alleging adultery by his wife. He stated that he was serving in the Indian Army and did not have physical access to his wife at the time when the child was conceived. The Family Court allowed his request for a DNA test of the child. The wife challenged this order before the High Court.

Key legal provisions

Section 122 of Indian Evidence Act

Section 13-B of Hindu Marriage Act, 1955

Section 13 of the Hindu Marriage Act, 1955

Section 114 of the Evidence Act

Issues raised

Can a DNA test be ordered when the divorce case is only about adultery and there is clear pleading that the husband had no access to the wife during the time of conception?

Arguments of the case

The wife argued that a DNA test would harm the child’s dignity and status. The husband argued that the test was needed only to prove adultery and not to declare the child illegitimate, and that he had clearly pleaded non-access.

Judgement

The Madhya Pradesh High Court upheld the Family Court’s order. It held that when a divorce petition is based on adultery and there are clear pleadings of non-access, a DNA test can be ordered. The Court found no error in the Family Court’s decision and dismissed the wife’s petition.

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