Rajasthan HC Orders DNA Test Of 93-Year-Old To Determine Daughter's Maternity In Property Dispute, Says No Presumption Of Maternity In Law

While terming it a “rarest of rare cases” where the mother was denying a child to be her's, Rajasthan High Court directed a 93 year old woman to undergo DNA test, to determine maternity of the petitioner who was claiming share in her father's ancestral property.

The bench of Justice Bipin Gupta expressed astonishment over the situation, and referred to the provisions under Indian Evidence Act, and BSA 2023, that provided for presumption regarding a child's paternity if born during subsistence of marriage or within 280 days of its dissolution.

The Court held that the legislature never contemplated a scenario where a female might also deny a child to be hers. In such a situation, where there was no legislative presumption regarding maternity, it was held that maternity could be conclusively determined through DNA testing.

“In the modern world, where everything has become materialistic, it is easy to admit or deny the parenthood of a child. However, it is extremely difficult for a child to prove that a particular person is his or her parent…Thus, the question that arises before this Court is that, when there is no statutory presumption in respect of a woman under the said provisions, how a person born to a female is to prove that the woman whom he or she claims to be his or her mother is, in fact, the natural mother.”

The Court was hearing a petition challenging the order of the trial court that rejected petitioner's application under Order 26, Rule 10-A, seeking DNA test of her alleged mother, in relation to a property dispute.

A will was registered by the petitioner's father in 2014 in relation to an ancestral agricultural property. When she got to know about the will, petition was filed for declaring it null and void since no will could have been registered in relation to the ancestral property. Further, she claimed half a share in that property, along with her mother.

This suit was opposed by the mother along with two others, on the ground that the petitioner was not her daughter.

In this background, the petitioner filed an application contending that her paternity could be proved by conducting DNA test of her mother. This application was rejected by the trial court on the ground that the test would infringe the privacy of the respondents who had already refused to under the test.

Hence, the petition was filed before the Court.

The Court highlighted that since the mother was not denying to be the wife of petitioner's late father, and only her maternity regarding the petitioner, the issue was not of paternity, rather of maternity.

“…when a female counterpart is not disputing her marriage with a male, but she is denying the fact that a child is not her own, then it is not a case of testing the paternity, but rather a case to decide the maternity of the child…This Court is astonished by the fact that a mother denying a child to be hers is a rarest of rare cases, as in society it is usually the male who denies the paternity of a child on many grounds, including alleged infidelity of the wife.”

The Court referred to the presumption under Indian Evidence Act and BSA, regarding a child's paternity, and the vacuum in the legislation regarding such presumption regarding a child's maternity. Hence, it was said that with significant advancement in science, a DNA test could render conclusive proof of maternity.

With respect to the argument of privacy, the Court held that while a person could not be forced to undergo paternity or maternity test, if anyone failed to appear for or denied undergoing a DNA test, the Court could proceed with the presumption under Section 114, of Indian Evidence Act and Section 119, of BSA.

In this background, the Court set aside the order passed by the trial court, and directed it to order the mother to undertake a DNA test for ascertaining petitioner's maternity.

It was stated that in case the mother refused to undergo a DNA test, relevant presumption shall work for the benefit of the petitioner.

Title: Smt. Bhauri Devi v Mahendra Kumar & Ors.

Citation: 2026 LiveLaw (Raj) 58

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