Madras High Court cancels DNA test order in ‘bigamy’ case, says child’s paternity irrelevant

The ruling came in a case involving a marriage solemnised on January 24, 2011, in Madurai. According to the order, a male child was born to the couple on June 18, 2012. The complainant’s case was that the man had hidden his first marriage and fraudulently induced her to marry him. She also alleged that he dishonestly obtained money and property from her and harassed her.

DNA test sought

The case began with a private complaint and directions issued by a judicial magistrate, following which an FIR was registered in 2018. Besides the aforementioned sections, the offences alleged included IPC sections 420 (cheating), read with 418 (cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect), and 468 (forgery for purpose of cheating). After investigation, a final report was filed and the matter was pending trial before the trial court.

Justice Mohammed Shaffiq held that the trial court’s order was devoid of merit and set it aside.

The question of DNA testing arose during the trial. While cross-examining the woman complainant, the man suggested that he was not the minor child’s biological father. He also suggested that the complainant had earlier married another person.

Following these suggestions, the prosecution in 2025 sought a direction for DNA testing of the three individuals. The trial court allowed the plea, finding that DNA testing would conclusively determine the issue of paternity. The man challenged the order before the high court, arguing that paternity was not an ingredient of the offences for which he was facing trial.

According to his case, the main question was whether he had concealed his existing first marriage before contracting the second marriage. He contended that paternity was only a collateral issue and could not justify compulsory DNA profiling.

The prosecution opposed the challenge, submitting that DNA testing had become necessary because of the issues that emerged during cross-examination.

Bigamy offence

Justice Shaffiq said the short question before the high court was whether the trial court was right in permitting DNA testing in a case involving allegations of cheating and remarrying after concealing a previous marriage. The high court noted that, for the purpose of the petition, it was not necessary to examine the cheating allegation because the trial court had primarily ordered the DNA test on the premise that it might be necessary to resolve the allegation under Section 495.

The court then examined sections 494 and 495. Section 494 concerns marrying again during the lifetime of a husband or wife, while Section 495 deals with the same offence where the former marriage is concealed from the person with whom the second marriage is contracted. The high court described Section 495 as an aggravated form of the offence under Section 494.

According to the high court, the prosecution must establish the elements required for an offence under Section 494 and, additionally, prove that the accused concealed the former marriage from the person with whom the second marriage was contracted.

‘Can’t order DNA test to solve collateral issues’

The court noted that DNA testing is not to be ordered routinely and that, even where it is one possible means of establishing an issue, other modes of proof should be exhausted before resorting to it.

The high court added: “Before a Court directs or orders a DNA test, it must be shown that the result of the DNA test is directly in issue and, more importantly, that there is an ‘eminent need’ to order such a test.”

It also referred to Supreme Court principles that DNA tests should not be ordered routinely when paternity is only a secondary issue. Such tests should be ordered only in exceptional cases where they are indispensable to resolve the dispute.

“The offence alleged, falling under Sections 495 of IPC is neither of nature nor of a circumstance that warrant recourse to DNA analysis,” the high court said, adding that the trial court had wrongly understood the law and constitutional safeguards when it ordered the DNA test.

It held that the trial court’s order was devoid of merit and set it aside. The criminal revision petition was disposed of with no costs.