Institute of Legal and Management Studies

In a significant ruling reiterating the sanctity of the presumption of legitimacy attached to children born within wedlock, the Supreme Court has held that a DNA test cannot be directed as a matter of course to determine paternity, especially when it risks illegitimising a child and intrudes upon individual privacy.

The Court underscored that scientific tools like DNA profiling cannot be used for “fishing inquiries” and must be resorted to only in cases of eminent need, where the investigation cannot proceed without it.

Observing that the presumption of a child's legitimacy during a wedlock under Section 112 of Evidence operates as a 'conclusive proof', the Supreme Court on set aside the Madras High Court (Madurai Bench) order that compelled a doctor to undergo a DNA test in a paternity dispute.

“Section 112 embodies a legislative policy of profound significance, it stands as a bulwark against the casual illegitimization of children on the strength of unsubstantiated allegations or mere suspicion. The presumption it creates is not a procedural formality to be lightly displaced but a substantive safeguard intended to protect the dignity, social legitimacy, and the legal rights of children born within wedlock.”, observed a bench of Justice Prashant Kumar Mishra and Justice Vipul M Pancholi.

Background of the Case

The case arose from a criminal complaint filed by the respondent, who alleged that she had been in an extramarital relationship with the appellant, , while still married to another man. She claimed that her child, born in 2007, was fathered by the doctor.

Following her public allegations on a television programme, an FIR was registered against the appellant for cheating and harassment under Sections 417 and 420 of the IPC and the Tamil Nadu Women Harassment Act. During investigation, police sought DNA testing of the appellant, the respondent, and the child.

When the doctor refused, the High Court ordered that he submit to DNA profiling. That direction was later affirmed by a Division Bench, leading to the present appeal.

Supreme Court's view

The Supreme Court began its analysis by examining Section 112 of the Indian Evidence Act, which provides a “conclusive presumption of legitimacy” for a child born during the continuance of a valid marriage.

Setting aside the impugned findings, a judgment authored by Justice Mishra observed:

"The presumption under Section 112 of the Evidence Act operates as 'Conclusive Proof' of the legitimacy of a child born during the subsistence of a valid marriage... This presumption endures unless it is affirmatively established, by strong and unambiguous evidence, that the parties to the marriage had no access to each other at any time when the child could have been begotten... Since the law favours legitimacy and frowns upon the illegitimacy, the burden is cast upon the person who asserts 'illegitimacy' to displace the presumption."

Taking a cue from the recent precedent of Ivan Rathinam vs. Milan Joseph, 2025 LiveLaw (SC) 118, where the Court laid down the two-fold test that must be satisfied before a DNA test can be ordered i.e., (i) insufficiency of evidence; and (ii) a positive finding regarding the balance of interests, the judgment authored by Justice Mishra observed:

The Court held that to rebut this presumption, the claimant must prove “non-access” between the husband and wife at the time the child could have been conceived. Mere allegations of an affair or simultaneous access by another person, the judges said, do not displace this presumption.

The Bench noted that in the present case, the complainant's husband's name appeared as father in the child's birth and school records, and there was no concrete proof that he had no access to his wife at the relevant time.

On the aspect of balance of interests, the court said “In the present case, this balance weighs decisively against ordering DNA testing. Such a direction would constitute a significant intrusion into the privacy and dignity of both, the appellant and the child, implicating the fundamental right to privacy guaranteed under Article 21 of the Constitution of India.”

The Court found that in this case, neither blockade was crossed, as the presumption of legitimacy stood unrebutted and the balance of interests weighed against the test.

On Right To Privacy And DNA Testing

The Court strongly affirmed that compelling an individual to undergo a DNA test is a serious intrusion on fundamental rights, observing:

"Forcefully subjecting an individual to DNA testing constitutes a grave intrusion upon privacy and personal liberty. Such an encroachment can be justified only if it satisfies the threefold test of legality, legitimate State aim, and proportionality."

The Court further held that one party's willingness to waive their own privacy "does not extend to waiving the privacy of others."

Even if the mother voluntarily waives her privacy, that waiver does not extend to the privacy rights of the child or the alleged father, the Court clarified.

It further observed that the child, who has now attained majority, was not a party to the proceedings, and her privacy and dignity could not be overridden to facilitate a criminal investigation.

Misuse Of DNA Testing In Criminal Investigations

The Court drew a crucial distinction, noting that the paternity of the child was merely a "collateral factor" to the criminal charges of cheating and harassment.

The Bench pointed out that the offences alleged—cheating and harassment—did not require proof of paternity to be investigated or adjudicated.

The Court said the Madras High Court erred in invoking Sections 53 and 53A of the Code of Criminal Procedure, which allow medical examination of the accused in certain cases.

It authoritatively stated:

"A direction for DNA testing must have a direct and demonstrable nexus with the offences under investigation. In the absence of such nexus, compelling a person to undergo DNA profiling, amounts to unwarranted intrusion into bodily autonomy and privacy, contrary to the safeguards implicit in Articles 20(3) and 21 of Constitution of India.", the court observed.

“This Court has consistently held that DNA testing cannot be ordered as a matter of course and must be subject to stringent safeguards to protect the dignity of individuals and the legitimacy of children born during the wedlock. The power to direct such tests must be exercised with utmost circumspection and only when the interests of justice imperatively demand such an intrusive procedure. Courts must remain vigilant against fishing inquiries masquerading as legitimate requests for scientific evidence, ensuring the sanctity of family relationships is not compromised by speculative or exploratory investigations.”, the Court added.

Adverse Inference Not Warranted

Rejecting the complainant's plea to draw an adverse inference from the appellant's refusal to undergo DNA testing, the Court said such inference arises only after the court lawfully directs the test, not before deciding whether the test is justified.

It quoted observations in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023):

“A party cannot jump to seek an adverse inference without first establishing that a DNA test was necessary and lawfully ordered.”

Conclusion

“In summation, the direction for DNA testing, as affirmed by the Division Bench, rests upon the fundamental misapprehension of both statutory framework and constitutional safeguards. The offences alleged, falling under Sections 417 and 420 of the Indian Penal Code, 1860 and Section 4(1) of the Tamil Nadu Women Harassment Act, are neither of nature nor of a circumstance that warrant recourse to DNA analysis. The High Court's invocation of Sections 53 and 53A of the Code of Criminal Procedure, 1973, rests on a misconstruction of their contextual ambit; these provisions contemplate medical examination only where such an examination may directly yield evidence relating to commission of the alleged offence. Absent that nexus, compulsion of a DNA test transforms a lawful investigative power into an intrusive measure devoid of necessity, trenching upon the individual's bodily autonomy, privacy. Scientific procedures, however advanced, cannot be employed as instruments of speculation; they must be anchored in demonstrable relevance to the charge and justified by compelling investigative need.”, the Court held.

The appeal was allowed.

Cause Title: R. RAJENDRAN VERSUS KAMAR NISHA AND OTHERS

Citation : 2025 LiveLaw (SC) 1086

Click here to read/download the judgment

Appearance:

For Appellant(s) : Mr. Pulkit Tare, Adv. Mr. Sheikh F. Kalia, Adv. Mr. D.Kumanan, Adv. Mr. Ashwary Kathed, Adv. Mr. Suvendu Suvasis Dash, AOR

For Respondent(s) :Mr. Ankur Prakash, AOR Mr. M.P. Parthiban, Adv. Mr. Balaji Subramanian, A.A.G. Mr. Sabarish Subramanian, AOR Mr. Danish Saifi, Adv. Mr. Akash Kundu, Adv.