Supreme Court: In a case where the central question was whether to direct DNA testing to establish paternity in a criminal investigation predicated on allegations of an extra-marital relationship between a doctor and his patient’s wife, which purportedly led to the birth of a child, the bench of Prashant Kumar Mishra and Vipul M. Pancholi, JJ., held that a DNA test to challenge paternity cannot be directed as a matter of routine unless the presumption of legitimacy under Section 112 of the Evidence Act, 1872 has been rebutted. The Court held that in the absence of strong, unambiguous evidence of non-access between a married couple, compelling the third party for DNA testing would be an unjustified intrusion into privacy and dignity, especially when the paternity issue was collateral to the core offences of cheating and harassment.
FACTUAL BACKGROUND
Respondent No.1, who got married in 2001, developed an extramarital relationship with the appellant doctor, who had treated her husband which allegedly led to the birth of a child in 2007. Upon learning this, her husband deserted her. Respondent No.1 then approached the appellant for assistance, as her husband had deserted her. The appellant asked respondent No.1 to pay Rs.3,00,000/- to his second wife in return for taking her house on lease. She subsequently asked him to marry her and make their relationship public. Upon his refusal, a quarrel ensued on 09.05.2014. Thereafter, the appellant began avoiding her. Unable to sustain herself, she publicly narrated her complaint on a TV show, leading to an FIR against the appellant for cheating and harassment under Sections 417 and 420 of the Penal Code, 1860 (IPC) and Section 4(1) of the Tamil Nadu Women Harassment Act.
During investigation, police sought a DNA test to confirm paternity, but the appellant refused. Respondent No.1 then approached the High Court twice, resulting in repeated orders for DNA testing, which the appellant kept challenging. Ultimately, the Division Bench upheld the order directing him to undergo the DNA test, leading to the present appeal before the Supreme Court.
DETAILED ANALYSIS
Section 112 of the Evidence Act: Presumption of legitimacy of a child, Rebuttal and Failure to Establish Non-access
The Court explained the scope of presumption under Section 112 of the Evidence Act and held that it operates as “Conclusive Proof” of the legitimacy of a child born during the subsistence of a valid marriage, by presuming that the parents had access to each other at the relevant time. Embedded in this presumption is the legal recognition that the husband is deemed to be the father of the child born to his wife.
This presumption can only be rebutted by strong, clear, and conclusive evidence proving that the spouses had had no access to each other at any time when the child could have been begotten, or after dissolution of marriage if the mother remained unmarried. The burden of disproving legitimacy lies entirely on the person who alleges the contrary.
While the degree of proof must be higher than mere preponderance of probabilities, yet need not reach the exacting criminal standard of proof beyond reasonable doubt. The Court explained that this intermediate threshold serves the twin objectives of preventing the illegitimization of the child on the strength of mere assertions or tilting of probabilities, while simultaneously guarding against weaponization of the statutory presumption to defeat the legitimate claims.
Giving a very narrow and specific interpretation to “access” and “non-access”, the Court held that non-access denotes the impossibility, not merely the absence or lack of such opportunity, such as due to impotency, severe illness, physical incapacity, or proven absence during the relevant period. Merely living separately, lack of communication, or even evidence of the wife’s infidelity does not displace the presumption of legitimacy if access was possible. Allegations of extramarital relations or simultaneous access by third parties cannot negate the legal presumption that the husband is the father, if there was potential access between the spouses during the period of conception.
In the case hand, the Court noted that the child in question was born on 08-03-2007, during the valid marriage between Respondent No.1 and her husband, hence, the presumption under Section 112 of the Evidence Act clearly operated in favour of the Husband being the child’s legitimate father. While this presumption could only be rebutted by proving non-access between the spouses at the relevant time of conception, the Court noted that Respondent No.1 failed to provide any credible evidence showing that her husband was absent or incapable of procreation. Her claim that he deserted her in 2008—2009 also came much after the child’s birth and remained an unsubstantiated assertion.
The Court further highlighted that all official documents, including the birth certificate and school records, consistently named the Husband as the child’s father, reinforcing the presumption of legitimacy. The Court noted that at best, Respondent No.1’s case indicated simultaneous access—that she had relations with both her husband and the appellant—which is legally insufficient to displace the presumption of legitimacy. Critically, she had not pleaded or proved non-access with her husband during the period of conception, a necessary condition to rebut Section 112. Hence, the presumption remained intact, and the Husband was deemed to have had access.
The Court noted that the legal status of the child cannot be altered by mere assertions or by subjective perception of respondent No.1.
DNA Testing — When Possible
On the issue as to whether the appellant can be subjected to DNA profiling to determine whether he is the biological father of the child born to respondent No.1, the Court observed 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.
Coming to the case at hand, the respondent No.1 had sought a direction for DNA testing precisely to dislodge the statutory presumption of legitimacy that safeguards the child, and to establish the appellant as the biological father so as to sustain the criminal charges of cheating and harassment. However, as discussed above, the Court found no insufficiency of evidence to dislodge the presumption of legitimacy.
The Court also emphasised that while deciding if directing a DNA test would serve the best interests of the parties involved or whether it would occasion undue harm, the rights and welfare of all the stakeholders—the appellant, the child who has now attained majority, and respondent No.1 herself — must be taken into consideration.
In the present case, the Court held that 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 noted,
“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.”
While Respondent No.1 had expressed her willingness to undergo a DNA test to establish the child’s parentage, the Court held that her surrender of her own privacy does not constitute a waiver of the right to privacy of the appellant and the now-adult child. The Court stressed that any forensic direction must give paramount regard to the child’s dignity, emotional wellbeing and autonomy. The Court noted that the refusal to submit to the DNA test is protected by precedent such as Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418.
Further, there exists no legitimate aim that necessitates such an intrusive procedure, since the criminal allegations of cheating and harassment can be investigated and adjudicated on the strength of other evidence, without delving into the question of biological paternity. The test of proportionality is also manifestly not met; the invasion of privacy and dignity of the appellant and the child far outweigh any conceivable investigative benefit.
The Court also refused to draw adverse inference against the appellant under Sections 114(g) and (h) of the Evidence Act because he refused to undergo a DNA test as before drawing any such inference, the statutory presumption under Section 112 must be displaced by positive, cogent evidence of non-access between the spouses.
The Court, hence, concluded that neither the “eminent need” standard, set out in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, nor the “balance of interests” test, clarified in Ivan Rathinam v. Milan Joseph Ivan Rathinam v. Milan Joseph, 2025 SCC OnLine SC 175, was satisfied in this case. Therefore, ordering a DNA test would amount to an unwarranted intrusion into bodily autonomy and privacy, contrary to the constitutional protections under Articles 20(3) and 21. The Court also held that the invocation of Sections 53/53A of the Code of Criminal Procedure, 1973 (CrPC) by the High Court to justify the test was misplaced, as those provisions apply only when the medical examination directly relates to the alleged offence.
The Court, hence, set aside the impugned judgment of the High Court dated 10.05.2017 and observed that,
“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.”
[R. Rajendran v. Kumar Nisha, CRIMINAL APPEAL NO.1013 OF 2021, decided on 10-11-2025]
*Judgment Authored by Justice Prashant Kumar Mishra
Advocates who appeared in this case:
For Appellant(s): Mr. Pulkit Tare, Adv. Mr. D.Kumanan, Adv. Mr. Sheikh F. Kalia, Adv. Mr. Suvendu Suvasis Dash, AOR
For Respondent(s): Mr. Ankur Prakash, AOR Mr. Balaji Subramanian, A.A.G. Mr. Sabarish Subramanian, AOR Mr. Vishnu Unnikrishnan, Adv. Ms. Arpitha Anna Mathew, Adv. Mr. Veshal Tyagi, Adv. Ms. Jahnavi Taneja, Adv. Mr. K.s.badhrinathan, Adv. Mr. Akash Kundu, Adv. Mr. Danish Saifi, Adv.
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