Tarun Chatterjee, J.— Leave granted. This appeal is directed against the judgment and order dated 26-6-2008 passed by the High Court of Madhya Pradesh at Indore Bench in IA No. 803 of 2007, which arose in a pending first appeal, which has been filed against the judgment and order dated 7-12-2006 passed by the Additional District and Sessions Judge, District Mandsor, Madhya Pradesh. In the impugned order in the pending first appeal, the High Court had directed the DNA test of the child of the parties to be performed.
2. The facts leading to the filing of this appeal in this Court are as follows: the marriage of the appellant wife was solemnised with the respondent husband on 20-4-1999. But after some time, the respondent husband started harassing the appellant wife on various issues and she was subjected to cruelty and eventually she was turned out of her matrimonial home. In the year 2004, the respondent husband filed an application being HMA No. 7(C) of 2004 under Section 13 of the Hindu Marriage Act, 1955 in the Court of the Additional District and Sessions Judge, District Mandsor, Madhya Pradesh. However, a child was born in the month of November 2004 to the parties. The parties entered appearance and issues were framed and finally, the trial court by its judgment and decree dated 7-12-2006 dismissed the petition filed by the respondent husband against which, the respondent husband had filed an appeal before the High Court of Madhya Pradesh at Indore Bench under Section 28 of the Hindu Marriage Act. As noted hereinearlier, the said appeal is pending decision in the High Court.
3. In the said pending appeal, an application was made by the respondent husband for an order to perform a DNA test of the child born in the month of November 2004 on the ground that such child could not be taken to be a child born from the wedlock of the parties. It was the appellant who objected to this application stating inter alia that the child was born from the wedlock of the parties and it was also brought to the notice of the High Court that the respondent husband did not deny the paternity of the child while the suit was pending before the trial court.
4. The High Court, by the impugned order, allowed the said application of the respondent husband by making the following observation:
“However, since the appellant has made a prestige issue and it appears to this Court that in case in the DNA test if it is found that the son of the respondent is from the appellant then the family can be reunited.”
On a plain reading of the impugned order, it is also evident that the High Court has allowed the prayer of the respondent husband for performing a DNA test of the child without looking to the facts and circumstances of the present case and without looking into the question of law that may be raised in the matter. Feeling aggrieved by this order, the appellant wife has come up to this Court by way of a special leave petition, which on grant of leave, was heard in the presence of the learned counsel for the parties.
5. We have heard the learned counsel for the parties and examined the impugned order of the High Court as well as the judgment of the trial court by which the application for grant of divorce filed under Section 13 of the Hindu Marriage Act by the respondent husband was dismissed.
6. We are unable to accept the impugned order of the High Court. The High Court was not justified in allowing the application for the grant of a DNA test of the child only on the ground that there will be a possibility of reunion of the parties if such DNA test was made and if it was found from the outcome of the DNA test that the son was born from the wedlock of the parties. In the absence of any reason except on the ground that the respondent husband had made a prestige issue about the paternity of the child, nothing could be found from the impugned order of the High Court which could invite the Court to allow such application.
7. On a perusal of the application for grant of an order for a DNA test of the child, it would also be evident that there was no allegation made by the respondent husband that as a consequence of illicit relationship with some third person, the child was born to the appellant wife. Apart from that, it is an admitted position that during the pendency of the divorce proceedings in the trial court, neither was such prayer for performing a DNA test to find out the paternity of the child ever made by the respondent husband nor was any allegation in the plaint made by him in his pleading. Therefore, it was not open to the High Court at the appellate stage to direct a DNA test to be performed on the child of the appellant wife.
8. It is also well settled that the presumption of legitimacy is a presumption of law. When a child is born from a wedlock, there is a presumption in favour of his legitimacy and presumption of legitimacy largely depends on the presumed fact that the parties to a marriage have necessary access to each other when a divorce petition is filed and specially, when the respondent husband did not assert that the son of the appellant wife was a consequence of illicit relationship with some third person. The High Court, in the impugned order, has also observed that the son of the appellant wife was begotten from the respondent husband, which cannot be disputed at this stage on the basis of mere desire of the respondent husband to deny such paternity of the child.
9. For the reasons aforesaid, the impugned order is set aside and the application for a DNA test to be performed on the child of the appellant wife is hereby rejected. Considering the facts and circumstances of the case, we request the High Court to dispose of the pending appeal at an early date, preferably within six months from the date of supply of a copy of this order to it.
10. The appeal is thus allowed. There will be no order as to costs.