Allahabad High Court refused DNA test plea, holding Section 112 Indian Evidence Act, 1872 ensures legitimacy if spouses had access. Justice Nand Prabha Shukla stressed social parentage over biological proof.
The Allahabad High Court dismissed an application seeking a DNA test to determine the paternity of a child born during the subsistence of a valid marriage. The Court held that the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872 remains conclusive and cannot be overturned merely because a DNA report suggests otherwise, so long as the spouses had “access” to each other at the relevant time. Justice Nand Prabha Shukla remarked that the law emphasizes “social parentage over biological parentage” and cautioned that DNA testing should not be ordered as a routine measure.
Background of the Case
The applicant-wife was married in 2012. During the continuance of the marriage around 2018–19 she was alleged to have been involved in an extra-marital relationship with another person (opposite party no. 2). A male child was born on July 12, 2020. The husband, doubting the child’s paternity, conducted a private DNA test, which reportedly indicated that he was not the biological father. He then filed for divorce on August 24, 2020.
At the same time, the wife pursued proceedings under Section 125 of the Code of Criminal Procedure for maintenance for the child and sought maintenance from the alleged biological father. During these proceedings, she moved an application seeking DNA testing of the child and opposite party no. 2 to establish paternity.
The Family Court at Agra rejected this request on January 19, 2026. Aggrieved, the wife challenged that decision under Section 528 of the Bharatiya Nagarik Suraksha Sanhita.
Court’s Analysis
The High Court examined the scope of Section 112 of the Evidence Act, which provides that the birth of a child during a valid marriage is “conclusive proof” of legitimacy unless it is shown that the spouses had no access to each other at the time of conception. The Court reiterated that the presumption is intentionally strong to protect the child’s status and maintain social stability.
Relying on earlier judicial decisions, including Ivan Rathinam v. Milan Joseph, the Court observed that the person alleging illegitimacy must carry the burden of proof and must establish “non-access” through clear and cogent evidence. It explained that “access” means the possibility of marital relations, and that “non-access” refers to impossibility rather than mere difficulty.
The Bench also referred to Goutam Kundu v. State of West Bengal and Bhabani Prasad Jena v. Orissa State Commission for Women to emphasize that DNA testing should not be ordered lightly. The Court stated that such testing should be directed only when there is a strong prima facie case and an “eminent need” for the evidence.
The Court further relied on the observations in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, and kept the following statement:
“In such situation, adultery may be proved on the part of the wife, the legitimacy of the child, would still be conclusive in law. The conclusive presumption of legitimacy of a child borne during the subsistence of a valid marriage is that the child is that of the husband and it cannot be rebutted by a mere DNA test report.”
Applying these principles, the Court held that the husband and wife were living together during the relevant period, which satisfied the requirement of “access.”
It further concluded that even if an extra-marital relationship were assumed, that fact alone would not be sufficient to dislodge the statutory presumption of legitimacy.
The Court observed:
“Even if it is presumed that Applicant No.1 developed extra marital relationship with opposite party no.2 especially when the Applicant No.2 was begotten, such a fact, per se, would not be sufficient to displace the presumption of legitimacy. It seems that the husband and opposite party no. 2 both had simultaneous access.”
In addition, referring to the more recent ruling in R. Rajendran v. Kamar Nisha, the Court noted that Section 112 functions as a safeguard against casually branding children as illegitimate.
Finding no compelling reason to order DNA testing, the High Court upheld the Family Court’s order and dismissed the application, reiterating that legal presumptions in such situations cannot be lightly displaced by biological uncertainty.
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