DNA Test Can Be Directed in Divorce Case Alleging Adultery Where Specific Pleadings of Non-Access Exist: Madhya Pradesh High Court

“Where Adultery is the Allegation and Non-Access is Pleaded, DNA Test May Be the Only Effective Tool to Establish Truth” —  Madhya Pradesh High Court delivered a significant ruling on the scope of judicial discretion in ordering a DNA test of a minor child in matrimonial proceedings. Upholding the Family Court's direction for a DNA test to determine paternity, the Court observed that the presumption of legitimacy under Section 112 of the Indian Evidence Act is not absolute where the husband pleads adultery with specific averments of non-access.

Justice Vivek Jain dismissed the wife’s challenge to the Family Court’s order and affirmed that when a DNA test is the only scientific and effective method to prove or disprove alleged infidelity — without a direct challenge to the child’s legitimacy — the truth-finding role of the court outweighs privacy concerns, especially where the proceedings are for divorce on the ground of adultery.

“Presumption under Section 112 Cannot Override the Right to Establish Truth in Divorce on Ground of Adultery”

The case arose from the third divorce petition filed by the respondent-husband, an Indian Army personnel, against the petitioner-wife, a constable in the Madhya Pradesh Police. The wife challenged the Family Court’s order dated 18.08.2022 allowing the husband’s application for a DNA test of the minor daughter, born during the subsistence of marriage.

The husband's case was not to dispute legitimacy or avoid child support obligations, but to establish adultery as a ground for divorce under Section 13(1)(i) of the Hindu Marriage Act. The Court clarified:

“It is not the case where the husband wants to know the paternity of the child... It is the case where DNA test of the child is being sought only to prove the fact of adultery of the wife.” [Para 6]

Relying heavily on the Supreme Court’s decision in Dipanwita Roy v. Ronobroto Roy (2015) 1 SCC 365, Justice Jain affirmed that where infidelity is alleged with clear pleadings, and DNA test is the only way to establish the truth, it may be permissible even if the child’s legitimacy is incidentally affected.

“In our view, but for the DNA test, it would be impossible for the respondent husband to establish and confirm the assertions made in the pleadings.” — quoting Dipanwita Roy [Para 6]

Specific Pleadings of Non-Access Critical to Rebut Presumption under Section 112 Evidence Act

Referring to the statutory presumption under Section 112 of the Indian Evidence Act, the Court reiterated the legal position that this presumption is conclusive unless “non-access” between spouses at the time of conception is proved.

In this case, the husband had specifically pleaded that:

• He was called home from Army posting in October 2015.
• Within four days, the wife informed him of her pregnancy.
• The child was born within eight months, making the timeline biologically implausible.

These pleadings, the Court held, prima facie establish non-access, and as such, the DNA test could not be denied on the ground of privacy or legitimacy presumptions.

“It is further pleaded that the child was born within 8 months of October 2015 and there is clear pleading of non-access at the time when the child was conceived.” [Para 12]

Balancing Right to Privacy with Evidentiary Necessity: ‘Eminent Need’ Test Applied

Justice Jain carefully navigated the tension between right to privacy of the child and mother, and the right of the husband to establish his case in a judicial proceeding.

Drawing from the principles in Ivan Rathinam v. Milan Joseph, 2025 SCC OnLine SC 175, the Court applied the “eminent need” and “balancing of interests” doctrine, reiterating that:

“First and foremost, the courts must consider the existing evidence to assess the presumption of legitimacy. If that evidence is insufficient… then the court must consider whether ordering a DNA test is in the best interests of the parties involved.” [Para 8]

Having found the husband’s pleadings sufficient and specific, the Court held that the DNA test was both necessary and proportionate to the object of adjudicating the ground of adultery.

DNA Test Not Intended to Declare Illegitimacy — Infidelity Alone in Issue

Rejecting the petitioner’s reliance on the Supreme Court’s rulings in Aparna Ajinkya Firodia, R. Rajendran, and Ivan Rathinam, the Court distinguished those decisions as cases where:

• The legitimacy of the child was the direct issue; or
• The DNA test was sought to establish cheating or paternity in criminal cases.

In contrast, this case did not seek a declaration of illegitimacy, and the Family Court’s order was limited to the issue of adultery in a pending matrimonial proceeding.

Justice Jain observed:

“In appropriate cases, DNA test can be ordered where necessary pleadings are there and no declaration is sought regarding illegitimacy of the child.” [Para 11]

If DNA Test Refused, Family Court Entitled to Draw Adverse Presumption

In a cautionary note to the wife, the Court upheld the Family Court’s liberty to draw an adverse inference under Section 114(h) of the Evidence Act or the corresponding provision in the Bharatiya Sakshya Adhiniyam, 2023, in the event she refuses to undergo the DNA test.

Citing the Supreme Court’s directive in Dipanwita Roy, the Court observed:

“This course has been adopted to preserve the right of individual privacy… without sacrificing the cause of justice.” [Para 6]

The Madhya Pradesh High Court’s judgment in Kamla Patel v. Govind Bahadur reaffirms that:

• DNA testing is not routine, but may be warranted in exceptional cases involving adultery, where non-access is specifically pleaded, and
• The presumption of legitimacy under Section 112 Evidence Act, while strong, is not impenetrable where privacy rights conflict with the need to establish judicial truth.

By carefully balancing these competing interests, the Court upheld the Family Court’s discretion and reinforced that scientific evidence can be legitimately employed in aid of justice, when confined to its lawful and limited objective.

Date of Decision: 20 January 2026
Case Title: Kamla Patel v. Govind Bahadur