DNA Test Cannot Be Used to Brand a Child Illegitimate Without Prima Facie Proof of Non-Access: Madras High Court

In a significant reaffirmation of the presumption of legitimacy, privacy rights, and judicial restraint in ordering intrusive scientific tests, the Madras High Court (Madurai Bench) on 25 September 2025 dismissed a Criminal Revision Petition filed by a husband seeking DNA testing of a minor child in a maintenance proceeding, observing that mere denial of paternity is not sufficient to override the statutory presumption under Section 116 of the Bharatiya Sakshya Adhiniyam, 2023.

Justice Shamim Ahmed held that “the child cannot be used as a pawn to show that the mother was living in adultery. The child’s right to identity and dignity must be protected, and DNA testing cannot be used as a shortcut to prove infidelity”.

“Presumption of Legitimacy Under Section 116 Is Conclusive Unless Non-Access Is Proved”

The petitioner-husband sought DNA testing of his daughter born in December 2009, alleging she was not his biological child. However, the Court held that Section 116 of the Bharatiya Sakshya Adhiniyam, 2023—a corresponding provision to Section 112 of the repealed Indian Evidence Act—provides a conclusive presumption that a child born during a valid marriage is legitimate unless it is shown that the parties had no access to each other during the time of conception.

Justice Shamim Ahmed noted:
“The Revision Petitioner has failed to establish non-access. No material has been placed before this Court to disprove access between them in the relevant period before the birth of the second respondent. The object of this principle is to prevent unwarranted inquiry into the paternity of a child.”

“DNA Testing Intrudes Upon Right to Privacy and Cannot Be Ordered Merely on Suspicion”

Emphasising the fundamental right to privacy and dignity of both mother and child under Article 21 of the Constitution, the Court cautioned against the misuse of scientific tools in personal disputes. It relied heavily on the Supreme Court’s recent ruling in Ivan Rathinam v. Milan Joseph, 2025 INSC 115, reiterating that DNA testing is not a routine measure, especially in matrimonial matters where serious reputational consequences follow.

The Court ruled:
“Unless the revision petitioner satisfies the initial burden of proof and establishes a strong prima facie case, such an intrusive test cannot be permitted. The DNA test, though scientific, intrudes into the personal domain and has the potential to violate the right to privacy.”

Referring to the earlier decisions in Goutam Kundu v. State of West Bengal and Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, the Court observed that adultery or infidelity cannot be presumed merely based on delayed suspicion, and DNA cannot be used as a tool to settle personal scores or to delay proceedings.

“Unexplained Silence of 12 Years Undermines Credibility of the Claim”

The petitioner and the respondent were married in March 2007, and the child was born in December 2009. The couple obtained divorce on 4 March 2012, and the wife filed a maintenance petition under Section 125 CrPC in 2021. However, the DNA application was filed only in 2025, after more than 12 years from divorce and 3 years after the maintenance claim.

The Court strongly disapproved of the unexplained delay, observing:
“The complete silence of the petitioner for the said period only raises further doubts on the genuineness of the claim that he is not the father of the minor female child. No reasonable or acceptable explanation has been provided.”

“Child’s Identity Cannot Be Sacrificed for Husband’s Suspicion”

The Court rejected the husband's argument that the DNA test was the only way to establish truth. Justice Shamim Ahmed held that the onus of proving adultery or non-access lay on the petitioner, and that alternative evidence must be brought to establish such claims.

In a strong reaffirmation of child-centric adjudication, the Court observed:
“The question whether a DNA test should be permitted on the child is to be analysed through the prism of the child and not through the prism of the parents. The child’s right to identity cannot be sacrificed to prove adultery of the mother.”

The Court also held that no adverse inference can be drawn from the wife’s refusal or non-response to the DNA application, and that privacy concerns override vague suspicions.

“Abuse of Process – DNA Petition Filed to Harass and Delay”

The Court found that the DNA petition was a misuse of legal process, designed to protract the maintenance proceedings and humiliate the wife. The application was termed “frivolous and unjustified”, and the revision petition was dismissed.

Justice Shamim Ahmed concluded:
“The petitioner has failed to establish a prima facie case. The long and unexplained delay, the absence of any documentary or supporting material, the legal presumption of legitimacy, and the privacy concerns involved, all weigh heavily against the revision petitioner.”

The Court reiterated the principle that “public rights must be preferred over private vendetta”, citing the maxim Jura publica anteferenda privatis juribus, meaning public interest must prevail over private interests.

Constitutional Rights, Legal Presumption, and Child’s Dignity Prevail Over Suspicion

Summing up its findings, the Madras High Court underscored that scientific tools like DNA testing must be balanced against constitutional protections, especially when they have the potential to stigmatize, violate privacy, and traumatize minors.

In matrimonial disputes, the Court made clear that adultery cannot be proved by dragging the child into courtroom science without satisfying the legal threshold of non-access.

The petition was accordingly dismissed, with the Court upholding the trial court’s detailed and reasoned refusal to permit the DNA test.

Date of Decision: 25 September 2025