Bombay High Court

ANAND DHINDIRAM GADEKAR DECD THRU LEGAL HEIRSversusKU. PRATHMESH LAXMAN LAGADE MINOR THRU MOTHER SMT. MANISHA LAXMAN LAGADE

Decided: 22 September 2026
Disposal: Allowed

Holding

The trial court’s order directing DNA testing is set aside; DNA testing may be ordered only after evidence shows insufficiency and the balance of interests favours it.

Summary

The petition challenged a 4 September 2018 order of the 8th Joint Civil Judge, Nashik, which directed the Regional Forensic Science Laboratory to conduct a DNA test on the plaintiff and certain defendants in a partition suit where the plaintiff claimed to be the illegitimate son of the deceased Anand Gadekar. The plaintiff had filed the DNA application without first presenting any evidence to support his claim, and the defendants argued that the presumption of legitimacy under Section 112 of the Evidence Act applied. The High Court examined precedents establishing that DNA tests are not to be ordered routinely and may be directed only when there is a strong prima facie case and the evidence on record is insufficient. It held that the plaintiff had not discharged his burden of proof and that ordering a DNA test at the pleading stage would infringe privacy rights and exceed judicial discretion. Consequently, the court set aside the trial court’s order, allowing the plaintiff to seek a fresh DNA application only after completing evidence and demonstrating the necessity of the test. The petition was allowed and disposed.

Issues considered

The trial court’s order directing a DNA test was issued without the plaintiff having led any evidence to support his paternity claim.
Whether a DNA test can be ordered as a matter of routine in paternity or legitimacy disputes.
Application and scope of the presumption of legitimacy under Section 112 of the Indian Evidence Act.
Balancing the right to privacy against the ‘eminent need’ for DNA testing.
Whether the plaintiff may file a fresh application for DNA testing after the evidence stage.

Legislation cited

Bharatiya Sakshya Adhiniyam, 2023 — s. 116
Indian Evidence Act, 1872 — s. 112

Subjects

DNA test
paternity
presumption of legitimacy
Section 112 Evidence Act
privacy
partition suit
burden of proof
eminent need
balance of interests

Judgment

Megha WP 13120 of 2018

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13120 OF 2018

Anand D. Gadekar (since deceased
through his legal heirs)
1) Smt. Sangeeta Anand Gadekar
2) Shubham Anand Gadekar
3) Ku. Prajakta Anand Gadekar
4) Ku. Priya Anand Gadekar ...Petitioner

V/s.

Ku. Prathmesh Laxman Lagade, minor
present through his mother -Smt.
Manisha Laxman Lagade ...Respondent
________________
Mr. Rajan S. Pawar with Mr. Aryavrat Dube for the Petitioner.
Mr. Amey Deshpande with Mr. Harsh Nishar and Ms. Vandana Bait for
the Respondent.
________________

CORAM: SANDEEP V. MARNE, J.
Judgment reserved on: 10 SEPTEMBER 2026
Judgment pronounced on: 22 SEPTEMBER 2026

JUDGMENT:

1) The Petition is filed challenging order dated 4 September 2018

passed by the 8th Joint Civil Judge, Senior Division, Nashik allowing the
Application at Exhibit-25 filed by the Plaintiff for DNA examination and
directing the Regional Forensic Science Laboratory to conduct DNA
examination of the Plaintiff and of one of the Defendant Nos. 2 to 4.

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2) Special Civil Suit No.501 of 2016 is filed by Respondent/Plaintiff
claiming that he is the illegitimate son of late Anand Dhondiram
Gadekar (Anand) and seeking partition of the suit properties. The
Defendants have denied Plaintiff’s claim of being son of Anand by filing
written statement. The Plaintiff filed application at Exhibit-25 for
conduct of Plaintiff’s DNA test alongwith Defendant Nos.2 to 4 for
proving his status as the son of Anand. The Application was opposed by
the Defendants. By impugned order dated 4 September 2018, the Trial
Court has allowed the application at Exhibit-25 and has directed the
Regional Forensic Science Laboratory to conduct DNA test of the
Plaintiff and one of the Defendant Nos.2 to 4 and to submit the report
before the Trial Court. The Defendants are aggrieved by the order of the
Trial Court dated 4 September 2018 and have filed the present Petition.

3) Mr. Pawar, the learned counsel appearing for the Petitioners
submits that the Trial Court has grossly erred in allowing Plaintiff’s
application for conduct of DNA test. That the Plaintiff is yet to lead
evidence in support of averments of the Plaint and has directly
proceeded to file an application for conduct of DNA test. That Plaintiff’s
father is alive and he is born during the legitimacy of wedlock between
his mother and father and that therefore, there is a presumption of he
being the legitimate child of his father. That the very claim of the
Plaintiff about being illegitimate son of Anand is contrary to settled
position of law. That direction for conduct of DNA test cannot be issued
in a routine and casual manner. That the burden of proving the case is on
the Plaintiff and without making any attempt to discharge that burden,
directly DNA test cannot be ordered. In support of his contentions, he
relies on judgment of this Court in Sumayya Kaira Bairagdar and
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others Vs. Raju @ Yusuf Bashik Ahmad Kulkarni1 and judgments of the
Apex Court in Ashok Kumar Vs. Raj Gupta and Others 2 , Banarsi Dass
Vs. Teeku Duttta (Mrs) and Another 3 and Bhabani Prasad Jena Vs.
Convenor Secretary, Orissa State Commission for Women and
Another4. He accordingly prays for setting aside of the impugned order.

4) Mr. Deshpande, the learned counsel appearing for the Respondent
opposes the Petition submitting that the Trial Court has correctly
directed conduct of DNA test. That the only way the Plaintiff can prove
his status as illegitimate child of Anand is through conduct of DNA test.
He takes me through averments in the Plaint in support of his
contention as to how the Plaintiff is born out of relationship between
Anand and Manisha. He submits that if DNA test is denied, the same
would amount to denial of opportunity to the Plaintiff to prove his
status. He submits that the DNA test is the only authentic way of
determining the status of the Plaintiff. In support, he relies on judgment
of the Apex Court in Chaturbhuj Pradhan Vs. Amar Pradhan & Anr. 5
He accordingly prays for dismissal of the Petition.

5) Rival contentions urged on behalf of the parties now fall for my
consideration.

6) The Plaintiff/Respondent has filed Special Civil Suit No.501 of
2016 seeking 1/5th share in the suit property. There are numerous
properties described in paragraph 1 of the Plaint. Paragraph 2 of the

1 2012 (2) Mh.L.J.
2 (2022) 1 SCC 20
3 (2005) 4 SCC 449
4 (2010) 8 SCC 633
5 2026 INSC 600

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Plaint contains an averment that the suit properties were owned by
Anand as his self-acquired properties. Plaintiff’s further pleaded case is
that his father Laxman Lagade used to conduct business in dairy
products. He was detected with psoriasis in 2005 and was unable to move
out of the house. Therefore, the business activities were taken over by his
mother Manisha. During the course of conduct of business, Manisha
came in contact with Anand, who was operating a hotel at Deolali.
Manisha used to supply milk and milk products for the hotel. During the
process, relation was established between Anand and Manisha and
Anand started assisting Manisha in treatment of Plaintiff’s father. There
was an extra-marital relationship between Anand and Manisha due to
which the Plaintiff was born on 20 February 2007. Anand passed away on
17 May 2016.

7) With the above pleadings, the Plaintiff has claimed status as
Anand’s illegitimate child and has claimed 1/5th share in the suit
properties. Defendant No.1 is Anand’s wife-Sangita and Defendant Nos.2
to 4 are children of Anand and Sangita. Written statements were filed by
the Defendants in January and March-2017. Immediately thereafter,
Plaintiff filed Application at Exhibit-25 on 15 March 2018 seeking
conduct of DNA test for proving that he is the illegitimate child of
Anand.

8) Thus, in the present case, the Plaintiff made no attempt to prove
his assertions in the Plaint and has directly proceeded to file application
for conduct of DNA test. It would be apposite to reproduce the averments
in the Plaint in support of claim of the Plaintiff being illegitimate child
of Anand. Paragraphs 3 and 4 of the Plaint read thus:

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३. वादीचे वडील नामे लक्ष्मण गौराप्पा लगडे यांचा दध
ु ापासून दही, ताक वनविवण्याचा
व्यवसाय आहे. सन २००५ मध्ये वादीचे वडीलांना सोरायसीसचा आजार झाल्यामुळे त्यांना
घराबाहेर पडणे अशक्य झाले. त्यामुळे वादीचे वडीलांचा व्यवसाय सांभाळण्याची संपूण0
जबाबदारी वादीची आई नामे मविनषा लक्ष्मण लगडे विहच्यावर आली. संसाराची जबाबदारी
स्वि5वकारून वादीच्या आईने सदरचा व्यवसाय चालविवण्यास सुरूवात केली. मयत आनंद
धोंडीराम गाडेकर यांचा हॉटेलचा व्यवसाय असून देवळाली गांवात हॉटेल सावता माळी या
नावाने ते व्यवसाय करीत होते. तसेच त्यांचा गोठा सुध्दा होता. त्यामुळे वादीची आई करत
असलेल्या व्यवसायास दध ु ाचा पुरवठा तसेच हॉटेलसाठी आवश्यक असणाऱ्या दही, ताकाची
खरेदी मयत आनंद धोंडीराम गाडेकर हे वादीच्या आईकडू न करीत होते . त्यामुळे वादीच्या
आईचा व मयत आनंद धोंडीराम गाडेकर यांचे संबंध आले . तसेच मयत आनंद धोंडीराम गाडेकर
यांच्या वडीलांकडे पुव>च्या काळी मविनषा लक्ष्मण लगडे विहचे वडील काम करत असल्यामुळे
आनंद व मविनषा यांचे दरम्यान पूव>पासून ओळखीचे संबंध होते.

४. वादीचे वडीलांच्या आजारासाठी आवश्यक ती मदत जसे डॉक्टरांकडे घेवून जाणे ,
औषधोपचार करणे वगैरे वादीच्या आईस मयत आनंद धोंडीराम गाडेकर करत होते . तसेच
व्यवसायाच्या कारणांमुळे सुध्दा वादीच्या आईचे व मयत आनंद धोंडीराम गाडेकर यांचे संबंध
वाढले. सदर संबंधांमुळे व ओळखीमुळे वादीची आई व मयत आनंद धोंडीराम गाडेकर यांचे
दरम्यान विववाहबाह्य संबध ं विनमा0ण झाले. सदर विववाहबाह्य संबंधांची माविहती प्र. वादी नं. १
म्हणजेच आनंद धोंडीराम गाडेकर यांची पत्नी यांना होती व आहे. त्या विववाहबाह्य संबंधातूनच
वादीच्या आईसः विदवस राहीले व वादीचा जन्म विद.२०/०२/२००७ रोजी नाशिशकरोड, नाशिशक
येथे झालेला आहे. परंतू मविनषा लक्ष्मण लगडे यांचा विववाह अस्वि5तत्वात असल्यामुळे वादीचे
वडील म्हणून मविनषाचे पती लक्ष्मण गौरप्पा लगडे यांचे नाव वादीचे वडील म्हणून लावण्यात
आलेले आहे. परंतू वादीचे जीवशास्त्रीय वडील हे आनंद धोंडीराम गाडेकर आहेत . त्याबाबतची
माविहती मयत आनंद धोंडीराम गाडेकर यांचे कुटू ंविबयांना म्हणजेच प्र. वादींना होती व आहे. अशा
प्रकारे मविनषा लक्ष्मण लगडे ही वादीची जनक माता असून आनंद धोंडीराम गाडेकर हे वादीचे
जीवशास्त्रीय वडील आहेत.

9) The Plaintiff will have to thus prove various averments in
paragraphs 3 and 4 of the Plaint. He will have to lead evidence to prove
whether his father was indeed in the business of dairy and milk products,
whether he suffered from psoriasis in 2005, whether his mother-Manisha
started conducting the business or came in contact with Anand. The
Plaintiff will have to prove supply of milk and milk products by mother-
Manisha to Anand and development of any relationship between them.
The Plaintiff will also have to lead some evidence about existence of
extra-marital relationship between Manisha and Anand. Since Manisha’s
husband-Laxman is alive and marriage between them was in subsistence
at the time of birth of the Plaintiff on 20 February 2007, the Plaintiff will
have to lead some concrete evidence that his birth is attributable only to

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the relationship between Manisha and Anand. Without making any
attempt to lead the evidence, the Plaintiff straightaway proceeded to file
application at Exhibit-25 seeking conduct of DNA test. Mere assertion of
the Plaintiff and denial thereof by Defendants cannot be a reason for the
Court to undertake the exercise of collection of evidence by directing
parties to DNA test.

10) The law on the issue of conduct of DNA test is by now well settled.
In Banarsi Dass (supra), the Apex Court has held that DNA test is not to
be directed as a matter of routine. In case before the Apex Court, the
Petition was filed for grant of succession certificate claiming that the
Respondent therein was daughter and only surviving Class I legal heir of
the deceased, who died intestate, but had five brothers. The brothers
objected to grant of succession certificate disputing the claim of
Respondent No.1 that she is the daughter of the deceased. The objectors
claimed that the Respondent was the daughter of another person.
Evidence was led by parties in support of their respective claims. The
objectors filed application for conduct of DNA test to conclusively
establish the paternity of the Respondent. The application was allowed
by the Trial Court, but the order of the Trial Court was reversed by the
High Court. Relying on its judgment in Goutam Kundu Vs. State of West
Bengal and Another6, the Apex Court held in paragraphs 8 and 14 as
under:-

8. In Goutam Kundu v. State of W.B. this Court held, inter alia, as
follows: (SCC p.428, para 26)
"26 (1)That courts in India cannot order blood test as a matter of
course;

6 (1993) 3 SCC 418

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(2)Wherever applications are made for such prayers in order to have
roving inquiry, the prayer for blood test 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.”

xxx
14. The main object of a Succession Certificate is to facilitate collection
of debts on succession and afford protection to parties paying debts to
representatives of deceased persons. All that the Succession Certificate
purports to do is to facilitate the collection of debts, to regulate the
administration of succession and to protect persons who deal with the
alleged representatives of the deceased persons. Such a certificate does
not give any general power of administration on the estate of the
deceased. The grant of a certificate does not establish title of the
grantee as the heir of the deceased. A Succession Certificate is intended
as noted above to protect the debtors, which means that where a debtor
of a deceased person either voluntarily pays his debt to a person
holding a Certificate under the Act, or is compelled by the decree of a
Court to pay it to the person, he is lawfully discharged. The grant of a
certificate does not establish a title of the grantee as the heir of the
deceased, but only furnishes him with authority to collect his debts and
allows the debtors to make payments to him without incurring any risk.
In order to succeed in the succession application the applicant has to
adduce cogent and credible evidence in support of the application. The
respondents, if they so chooses, can also adduce evidence to oppose
grant of succession certificate. The trial court erroneously held that the
documents produced by the respondents were not sufficient or relevant
for the purpose of adjudication and DNA test was conclusive. This is
not a correct view. It is for the parties to place evidence in support of
their respective claims and establish their stands. DNA test is not to
be directed as a matter of routine and only in deserving cases
such a direction can be given, as was noted in Goutam Kundu's
case (supra). Present case does not fall to that category. High Court's
judgment does not suffer from any infirmity. We, therefore, uphold it. It
is made clear that we have not expressed any opinion on the merits of
the case relating to succession application.
(emphasis added)

11) The judgments in Banarsi Dass and Goutam Kundu (supra) have
been followed by the Apex Court in Bhabani Prasad Jena (supra) and it
is held in paragraphs 19, 22 and 23 as under:-
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19. In Banarsi Dass v. Teeku Dutta & Anr., this Court was concerned
with a case arising out of succession certificate. The allegation was that
Teeku Dutta was not the daughter of the deceased. An application was
made to subject Teeku Dutta to DNA test. The High Court held that trial
court being a testamentary court, the parties should be left to prove
their respective cases on the basis of the evidence produced during trial,
rather than creating evidence by directing DNA test. When the matter
reached this Court, few decisions of this Court, particularly, Goutam
Kundu was noticed and it was held that even the result of a genuine
DNA test may not be enough to (2005) 4 SCC 449 escape from the
conclusiveness of Section 112 of the Evidence Act like a case where a
husband and wife were living together during the time of conception.
This is what this Court said :
"13. We may remember that Section 112 of the Evidence Act was
enacted at a time when the modern scientific advancements with
deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests
were not even in contemplation of the legislature. The result of a
genuine DNA test is said to be scientifically accurate. But even that
is not enough to escape from the conclusiveness of Section 112 of
the Evidence Act e.g. if a husband and wife were living together
during the time of conception but the DNA test revealed that the
child was not born to the husband, the conclusiveness in law would
remain irrebuttable. This may look hard from the point of view of
the husband who would be compelled to bear the fatherhood of a
child of which he may be innocent. But even in such a case the law
leans in favour of the innocent child from being bastardised if his
mother and her spouse were living together during the time of
conception. Hence the question regarding the degree of proof of
non-access for rebutting the conclusiveness must be answered in
the light of what is meant by access or non-access as delineated
above."
It was emphasized that DNA test is not to be directed as a matter of
routine and only in deserving cases such a direction can be given.

22. In our view, when there is apparent conflict between the right to
privacy of a person not to submit himself forcibly to medical
examination and duty of the court to reach the truth, the court must
exercise its discretion only after balancing the interests of the parties and
on due consideration whether for a just decision in the matter, DNA is
eminently needed. DNA in a matter relating to paternity of a child should
not be directed by the court as a matter of course or in a routine manner,
whenever such a request is made. The court has to consider diverse
aspects including presumption under Section 112 of the Evidence Act;
pros and cons of such order and the test of `eminent need' whether it is
not possible for the court to reach the truth without use of such test.

23. There is no conflict in the two decisions of this Court, namely,
Goutam Kundu and Sharda. In Goutam Kundu, it has been laid down
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that courts in India cannot order blood test as a matter of course and such
prayers cannot be granted to have roving inquiry; there must be strong
prima facie case and court must carefully examine as to what would be
the consequence of ordering the blood test. In the case of Sharda while
concluding that a matrimonial court has power to order a person to
undergo a medical test, it was reiterated that the court should exercise
such a power if the applicant has a strong prima facie case and there is
sufficient material before the court. Obviously, therefore, any order for
DNA can be given by the court only if a strong prima facie case is made
out for such a course.

12) In Ashok Kumar (supra) the Apex Court has held in paragraphs 14
and 15 of the judgment as under:

14. It was also the view of the Court that the normal rule of evidence is
that the burden is on the party that asserts the positive. But in
instances where that is challenged, the burden is shifted to the party,
that pleads the negative. Keeping in mind the issue of burden of proof,
it would be safe to conclude that in a case like the present, the court's
decision should be rendered only after balancing the interests of the
parties i.e. the quest for truth, and the social and cultural implications
involved therein. The possibility of stigmatising a person as a bastard,
the ignominy that attaches to an adult who, in the mature years of his
life is shown to be not the biological son of his parents may not only be
a heavy cross to bear but would also intrude upon his right of privacy.
15. DNA is unique to an individual (barring twins) and can be used
to identify a person's identity, trace familial linkages or even reveal
sensitive health information. Whether a person can be compelled to
provide a sample for DNA in such matters can also be answered
considering the test of proportionality laid down in the unanimous
decision of this Court in K.S. Puttaswamy (Aadhaar-5 J.) v. Union of
India [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1] ,
wherein the right to privacy has been declared a constitutionally
protected right in India. The Court should therefore examine the
proportionality of the legitimate aims being pursued i.e. whether the
same are not arbitrary or discriminatory, whether they may have an
adverse impact on the person and that they justify the encroachment
upon the privacy and personal autonomy of the person, being
subjected to the DNA test.

13) In Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia 7 the Apex
Court has summarised the principles and has enumerated the

7 (2024) 7 SCC 773

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circumstances under which DNA test of a minor child can be directed to
be conducted. The Apex Court held in paragraphs 43 to 43.5 as under:

“43. Having regard to the aforesaid discussion, the following principles
could be culled out as to the circumstances under which a DNA test of
a minor child may be directed to be conducted:

43.1. That a DNA test of a minor child is not to be ordered
routinely, in matrimonial disputes. Proof by way of DNA
profiling is to be directed in matrimonial disputes involving
allegations of infidelity, only in matters where there is no
other mode of proving such assertions.

43.2. DNA tests of children born during the subsistence of a
valid marriage may be directed, only when there is sufficient
prima facie material to dislodge the presumption under
Section 112 of the Evidence Act. Further, if no plea has been
raised as to non-access, in order to rebut the presumption
under Section 112 of the Evidence Act, a DNA test may not be
directed.

43.3. A court would not be justified in mechanically directing a
DNA test of a child, in a case where the paternity of a child is
not directly in issue, but is merely collateral to the proceeding.

43.4. Merely because either of the parties have disputed a
factum of paternity, it does not mean that the court
should direct DNA test or such other test to resolve the
controversy. The parties should be directed to lead
evidence to prove or disprove the factum of paternity and
only if the court finds it impossible to draw an inference
based on such evidence, or the controversy in issue
cannot be resolved without DNA test, it may direct DNA
test and not otherwise. In other words, only in
exceptional and deserving cases, where such a test
becomes indispensable to resolve the controversy the
court can direct such test.

43.5. While directing DNA tests as a means to prove adultery,
the court is to be mindful of the consequences thereof on the
children born out of adultery, including inheritance-related
consequences, social stigma, etc.”

(emphasis and underlining added)

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14) In Evan Rathinam vs. Milan Joseph8 the Apex Court has held in
paragraphs 35, 36, 46 and 47 of the judgment as under:

“35. In the peculiar circumstances of this case, this Court must
undertake an exercise to ‘balance the interests’ of the parties
involved and decide whether there is an ‘eminent need’ for a DNA
test. This pertains not simply to the interests of the child, i.e. the
Respondent, but also to the interests of the Appellant.

36. On one hand, courts must protect the parties' rights to privacy
and dignity by evaluating whether the social stigma from one of
them being declared ‘illegitimate’ would cause them
disproportionate harm. On the other hand, courts must assess the
child's legitimate interest in knowing his biological father and
whether there is an eminent need for a DNA test.
…
46. When dealing with the eminent need for a DNA test to prove
paternity, this Court balances the interests of those involved and
must consider whether it is possible to reach the truth without the
use of such a test.

47. First and foremost, the courts must, therefore, consider the
existing evidence to assess the presumption of legitimacy. If that
evidence is insufficient to come to a finding, only then should the
court consider ordering a DNA test. Once the insufficiency of
evidence is established, the court must consider whether
ordering a DNA test is in the best interests of the parties
involved and must ensure that it does not cause undue harm to
the parties. There are thus, two blockades to ordering a DNA
test : (i) insufficiency of evidence; and (ii) a positive finding
regarding the balance of interests.”
(emphasis added)

15) In Sumayya Kaira Bairagdar (supra), a coordinate Bench of this
Court has held that DNA test cannot be ordered as a matter of course and
that DNA test can be ordered only if evidence that would be adduced is
insufficient to establish the relationship. This Court held in paragraphs 3
and 4 of the judgment as under:

3 Since the relationship between the plaintiff and the said Bashir
Kulkarni was denied by the Defendant Nos.1 to 6, the Plaintiff filed the

8 2025 SCC OnLine SC 175

Page No.11 of 17
22 September 2026
Megha WP 13120 of 2018

instant application Exhibit 72 for subjecting himself and the Defendant
Nos.2 to 6 who are the daughters of the said Bashir Kulkarni and his
step sisters, to the DNA test. The said application came to be allowed by
the impugned order dated 1762011. The said order has been assailed in
the present petition, primarily on the ground that DNA test cannot be
ordered as a matter of course and that it is only if the evidence that
would be adduced is insufficient to establish the relationship between
the Plaintiff and the said Bashir Kulkarni, that the DNA test could be
ordered. Reliance was sought to be placed on the Judgment of the Apex
Court laying down the said preposition. However, the Learned Counsel
for the Respondent No.1 herein i.e. the original Plaintiff draws my
attention to the affidavits dated 23-9-2011 filed in the Trial Court in the
said Suit, by the Defendant No.1 Jannat Shaikh Bashir Ahmed Kulkarni,
Defendant No.2 Summaya Kaira Bairagdar and the Defendant No.3
Najneen Naushad Ambekari. The said affidavits have been filed after the
impugned order was passed. By the said Affidavits, the said Defendants
have accepted the relationship between the Plaintiff and the said Bashir
Kulkarni. Whereas the Jannat Shaikh Bashir Kulkarni has stated that the
Plaintiff is her step son and is born out of the marriage between her
husband Bashir Kulkarni and his first wife Noorbi i.e the Plaintiff’s
mother and therefore, accepts that the Plaintiff as her step son. In so far
as Defendant No.2 and Defendant No.3 are concerned, they have also
accepted the fact that the Plaintiff is begotten from the first wife of
their father Noorbi and the Plaintiff therefore is their step brother.

4. In my view, apart from the aforesaid fact of the filing of the affidavits,
by the said three defendants accepting the relationship, the DNA test
could have only been ordered if the trial Court comes to the conclusion
that the evidence on record is insufficient to prove the relationship
between the parties. In the instant case without the said course of
action being followed, straightaway the DNA test has been ordered. The
said course of action is now required to be followed in the light of the
affidavits being filed by the defendants as aforesaid.

16) On the other hand, Mr. Deshpande has relied upon recent
judgment of the Apex Court in Chaturbhuj Pradhan (supra), in which a
suit was filed seeking a declaration by Respondent No.1 therein that he is
son of Chaturbhuj Pradhan and was entitled to one-third share in his
property. In application by Respondent No.1, the Trial Court directed
Chaturbhuj to undergo DNA test to determine the paternity of the first
Respondent. Order was upheld before the High Court and this is how the
matter travelled to the Hon’ble Apex Court. Referring to various

Page No.12 of 17
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Megha WP 13120 of 2018

judgments including the judgment in Goutam Kundu (supra), the Apex
Court held in paragraph 6 of the judgment as under:

6. It is clear from the above judgments that when the Court is
confronted with the question whether or not to order a DNA test,
the only test to be satisfied is whether the result of the DNA test is
directly in issue and whether any other evidence-on-record can
substitute for the answer that may be arrived at through this
scientific process. Also, whether it is in the best interest of the
parties and/or justice.

6.1 In the present case, the alleged relationship between CP and the
second respondent was in January 1999 and Amar was born in
September 1999. CP has consistently denied paternity and there is no
other evidence that can provide a categorical answer. It is nobody’s case
that the second respondent had ever had an intimate relationship with
someone else.

6.2 Although there have been findings that state that the second
respondent has been unable to establish any link between CP and Amar,
those findings were not as a consequence of the full-dress trial. The
civil suit filed by Amar is for this very purpose and as such, the question
of paternity is directly in issue. On this count as well, we find in favour
of the respondent.

6.3 In view of the above observation, the question of res judicata also is
closed. As far as the right of privacy is concerned, we are balancing, in
this case CP’s privacy with Amar’s desire for closure on a question that
has loomed large on his life throughout. He has seen, right from
childhood, his mother assert that CP is the father but the authorities,
consistently found otherwise. If no positive answer is ever found out to
the question, it is quite possible that Amar would forever be denied the
rights he may otherwise be entitled to by virtue of being CP’s son.

(emphasis added)

17) After considering the ratio of various judgments particularly the
judgments in Goutam Kundu, Aparna Ajinkya Firodia and Evan
Rathinam (supra), following principles emerge:

(i) DNA test is not to be directed as a matter of routine.
(ii) The Courts must first consider the existing evidence to
assess the presumption of legitimacy.
Page No.13 of 17
22 September 2026
Megha WP 13120 of 2018

(iii) Only if evidence on record is not sufficient to come to a
finding of legitimacy, then the Court can consider
ordering a DNA test.
(iv)Even if insufficiency of evidence is established, the Court
must also consider whether order of DNA test is in the
best interest of the parties. The Court must also ensure
that it does not cause undue harm to the parties.

18) Thus insufficiency of evidence and positive finding regarding
balance of interests are the two parameters on which application for
conduct of DNA test needs to be adjudicated. Mere dispute created by
either of the parties about factum of paternity is not a ground to direct
the DNA test as a matter of course. To resolve the controversy, parties
should be first directed to lead direct evidence to prove the factum of
paternity and only if the Court is unable to draw an inference based on
such evidence and comes at a conclusion that it is impermissible to
resolve the controversy, it may direct DNA test, but not otherwise. The
DNA test can be directed to be conducted only in exceptional and
deserving cases where the evidence is insufficient to resolve the
controversy. The Court must also not permit a DNA test to be used as a
means of fishing or roving enquiry in absence of a sufficient factual
foundation.

19) Applying the above principles to the facts of the present case,
there was absolutely no warrant for directing conduct of DNA test in the
facts of the present case. As observed above, the Plaintiff is yet to open
his case by leading evidence. Even before making any attempt to prove
his pleaded case, the Plaintiff straightaway sought conduct of DNA test.
Page No.14 of 17
22 September 2026
Megha WP 13120 of 2018

DNA test is directed to be conducted as a matter of course by the Trial
Court merely because the Plaintiff asserted his status as Anand’s son and
Defendants denied the said assertion. The only reason recorded by the
Trial Court is in paragraph 4 of the impugned order, which reads thus:-

४) वादीने प्र5तुतचा दावा तो आनंद गाडेकर यांचा अनावरस मुलगा असल्याचे कथन
करून त्यांचे 5वकष्टार्जिजत विमळकतीमध्ये त्याचे विहश्याचे वाटप होउन विमळण्याकरीता केला
आहे. प्रतितवादीने वादी आनंद गाडेकर यांचा मुलगा असल्याचे नाकारले आहे. आनंद गाडेकर हे
मयत आहे. प्रतितवादी २ ते ४ विह आनंद गाडेकर यांची कायदेशिशर मुले आहेत. कायदेशिशर व
मान्य मुलांच्या डीएनए प्रोफाईलची पडताळणी केल्यानंतर वादी आनंद गाडेकर यांच्यापासुन
झालेला मुलगा आहे का हे सिसध्द होउ शकते . त्यासाठी वादीला डीएनए चाचणी करण्याची
संधी देणे योग्य होईल. त्यामुळे न्यायालयाला वादाचा गुणदोषावर विनण0 य देण्याकरिरता मदत
होणार आहे. तरी मी खालीलप्रमाणे आदेश करत आहे.

20) In my view therefore, the Plaintiff has not made out any case for
conduct of DNA test without even making any attempt to prove his
pleaded case. It is only after parties lead evidence and court finds it
impossible to arrive at a definitive conclusion that it can consider
directing conduct of DNA test. If after considering the evidence on
record, the Court is able to decide factual controversy based on evidence,
it may not be even necessary to conduct DNA test. The Trial Court also
needs to keep in mind the fact that the Plaintiff has not sought any
declaration that he is illegitimate son of Anand. He has straightaway
filed Suit for partition of properties of Anand. At this stage, it is too early
to predict whether the Plaintiff can be successful in the Suit without
seeking declaration of his status as son of Anand. I do not wish to delve
deeper into this aspect at this stage. Suffice it to observe now that in
absence of declaration sought about Plaintiff’s status as son of Anand
and without leading evidence, it was wholly impermissible for the
Plaintiff to seek conduct of DNA test.

Page No.15 of 17
22 September 2026
Megha WP 13120 of 2018

21) If Plaintiff fails to prove that his mother-Manisha conducted
business of milk and milk products or that she supplied any products to
Anand, the whole edifice of the claim of the Plaintiff would crumble.
Similarly, if there is absolutely no evidence to suggest development of
any intimate relationship between Anand and Manisha, the foundation
of the Plaintiff’s claim would disappear. Therefore, before the parties are
directed to undergo DNA test, the Plaintiff first needs to lead evidence in
support of the foundation on which his entire claim is based. He cannot
expect the Court to collect the evidence for reaching a final conclusion
without making any attempt to first prove the assertions made in the
Plaint. The Trial Court will also have to keep in mind the provisions of
Section 112 of the Indian Evidence Act, 1872 (Section 116 of the Bharatiya
Sakshya Adhiniyam, 2023) while deciding the issue of need to conduct the
DNA Test.

22) In view of the above discussion, impugned order passed by the
Trial Court directing parties to subject themselves to DNA test is clearly
unsustainable and liable to be set aside. However, setting aside the
impugned order would not preclude the Plaintiff from filing fresh
application for conduct of DNA test after completion of evidence nor
would it preclude the Trial Court from making an order for conduct of
DNA test if it arrives at a conclusion that it is impossible to resolve the
controversy in absence of scientific evidence in the form of DNA test.

23) The Petition accordingly succeeds and I proceed to pass the
following order:

Page No.16 of 17
22 September 2026
Megha WP 13120 of 2018

(i) Order dated 4 September 2018 passed by the 8 th Joint
Civil Judge, Senior Division, Nashik on Application at
Exhibit-25 filed in Special Civil Suit No.501 of 2016 is set
aside.
(ii) The Plaintiff would be at liberty to file fresh application
for conduct of DNA test after completion of evidence and
by demonstrating that evidence on record makes it
impossible for the Trial Court to decide the controversy
involved in the Suit.

24) Writ Petition is allowed and disposed of in above terms. There shall
be no order as to costs.

[SANDEEP V. MARNE, J.]

Digitally
signed by
MEGHA
MEGHA SHREEDHAR
SHREEDHAR PARAB
PARAB Date:
2026.09.22
20:47:23
+0530

Page No.17 of 17
22 September 2026

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