Karnataka High Court: In a writ petition filed by the petitioner, challenging the order of the which allowed an application for a DNA test in a partition suit, a Single-Judge Bench of M. Nagaprasanna, J., while setting aside the lower court’s order held that a DNA test cannot be ordered merely for the asking. The Court emphasized that such an order violates the well-established principle of the presumption of legitimacy under Section 112 of the Evidence Act, 1872 and infringes upon a person’s fundamental right to privacy and dignity under the Constitution.
Background
A partition suit was filed by the respondents against the plaintiff in 2016. It was contended that the father of the plaintiff underwent vasectomy and therefore the plaintiff could not be his son and hence an application under Order XXVI Rule 10A of the Civil Procedure Code 1908 (‘CPC’) was filed seeking DNA test of the plaintiff to determine their blood relation and paternity through scientific examination. The Senior Civil Judge & JMFC in an order dated 05-04-2025 allowed the application for the DNA Test. Aggrieved by this order the petitioner filed the present writ petition.
Analysis and Decision
The Court perused through the lower court’s order and Section 112 of the Evidence Act. It noted that provision declares that birth during marriage is conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is the legitimate son of that man, unless it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
The Court noted that the Supreme Court in Goutam Kundu v. State of W.B., (1993) 3 SCC 418, had held that,
“the courts in India cannot order blood test as a matter of course; prayers in that nature will result in having a roving enquiry, therefore, DNA test must not be entertained; there must be a strong prima facie case that the husband and the wife did not have access to each other in terms of Section 112 supra; the court must carefully examine as to what would be the consequence of such test.”
The Court further noted that the Supreme Court in Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633, had held that,
“in a matter where paternity of a child is in issue, the use of DNA test is extremely delicate and sensitive aspect. Therefore, the Court must not allow it as a matter of course, when there is apparent conflict between the right to privacy of a person not to submit himself or herself forcibly to medical examination. If DNA test is eminently needed, only then it is to be allowed, strictly within the parameters of Section 112 of the Evidence Act.”
The Court considering various other judgments of the Supreme Court noted that the order of DNA test if considered on the bedrock of the principle laid down by the Supreme Court in the judgments would undoubtedly run foul of those principles.
Interplay between DNA Test, Right to privacy and Dignity
The Court noted that in Ashok Kumar v. Raj Gupta, (2022) 1 SCC 20, the Supreme Court while setting aside the order of DNA Test had held that when the plaintiff or the defendant is unwilling to subject himself to DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy.
The Court noted that in Ivan Rathinam v. Milan Joseph, 2025 SCC OnLine SC 175, the Supreme Court considered the eminent need for a DNA test. The Supreme Court held that the need to conduct the test should be balanced with the interests of those involved and whether it is possible to reach the truth without the use of the test. The Supreme Court had observed that, “the courts must, therefore, consider the existing evidence to assess the presumption of legitimacy. If that evidence is insufficient to come to a finding, only then should the court consider ordering a DNA test. Once the insufficiency of evidence is established, the court must consider whether ordering a DNA test is in the best interests of the parties involved and must ensure that it does not cause undue harm to the parties.”
The Court observed that,
“On a blend of the judgments rendered by the Apex Court and different High Courts, what would unmistakably emerge is, the caution of the Apex Court followed by other High Courts that compelling such tests without imminent need, imperils not only the sanctity of marriage, but legitimacy of the child and also becomes violative of the fundamental rights to privacy and dignity, as obtaining under Article 21 of the Constitution of India.”
In light of the afore-stated discussion the Court concluded that:
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Section 112 is steeped in the maxim pater est quem nuptiae demonstrant i.e., the father is he whom the marriage indicates, which would mean the presumption of legitimacy of a child born during lawful wedlock.
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The blood test- DNA test must be permitted only in terms of the rigor of Section 112 which would be a demonstrable non-access during the period of birth of the child, as the presumption under Section 112 is rooted in public morality and societal peace.
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The court answering an application must bear in mind the interwoven delicate balance between the test, right to privacy and dignity, as ordained in the Constitution.
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The concerned court must not for the asking permit DNA test, unless the condition stipulated in Section 112 is fulfilled, which would be pleading and proving of non-access at the relevant point in time.
The Court observed that the lower court had blissfully ignored plethora of marital disputes between the parents of the plaintiff wherein it was established that plaintiff was born from the said wedlock. The lower court ignored every precedent as discussed above, the purport of Section 112 and presumption of paternity. No evidence was adduced before the lower court depicting non-access at the time of birth. The lower court in absence of all these treated the DNA test as frolicsome act and ordered it as a matter of course thereby losing sight of right to privacy and dignity of the plaintiff.
The Court quashed the order dated 05-04-2025 and declared all consequential proceedings and the DNA examination and its report as null and void in the eyes of law.
[Hareesh v. A.S.Umesh, 2025 SCC OnLine Kar 18499, decided on 01-09-2025]
Advocates who appeared in this case:
For the Petitioner: Vijay Krishna Bhat M., Advocate
For the Respondent: M. Murali Babu, Advocate
