The Bombay High Court has emphasized that courts must act as protectors of a child’s rights when deciding on requests for DNA tests to determine paternity — even when the mother agrees to such a test.
The decision came from Justice R.M. Joshi on July 1, 2025, in a case where a Family Court had earlier directed a DNA profiling test of a child born on July 27, 2013. The direction was based on the estranged husband's suspicion about the child’s paternity, alleging that his wife had lived an adulterous life and conceived the child only after they separated.
However, the wife argued that she was already three months pregnant when she left her husband’s home on January 19, 2013. She contended that the child was conceived during their marital relationship, and no doubt about paternity was ever raised by her husband at the relevant time.
“Even if the wife agreed for DNA testing, it was the duty of the Court to weigh the best interests of the child. A minor cannot decide on undergoing a DNA test, especially in matrimonial disputes,” Justice R.M. Joshi stated.
Background of the Case
The couple married on December 18, 2011. The wife left the matrimonial home in January 2013 while already pregnant. The husband issued a notice shortly after, asking her to return but without any mention of infidelity or doubts about paternity. Later, he filed a case for divorce on grounds of adultery, cruelty, and desertion.
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Although he initially filed for judicial separation and the wife sought restitution of conjugal rights, both proceedings were later merged and are being heard together by the Family Court.
When the child was about to turn ten, the husband again filed an application seeking DNA profiling to contest paternity. The Family Court granted this request, prompting the wife to approach the High Court.
Presumption of Legitimacy Under Indian Law
Justice Joshi stressed the legal presumption of legitimacy under Section 112 of the Indian Evidence Act, which states:
“A child born during a valid marriage is presumed to be the legitimate child of the husband unless it is proven that the husband had no access to the wife during the relevant time.”
The Court held that in this case, the husband never clearly denied having access to his wife during the period of conception. In fact, he knew she was pregnant when she left home and had never disputed paternity in previous legal proceedings.
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“Unless the husband specifically pleads and proves that he had no access to his wife at the time of conception, the legitimacy of the child cannot be questioned,” the Court observed.
Scientific Tests Vs. Legal Presumption
While the husband relied on Supreme Court rulings that allow DNA tests in certain cases, the High Court reiterated that such scientific tools cannot override the statutory presumption of legitimacy.
Quoting recent judgments, including Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia (2024), the High Court highlighted:
“DNA test results, even if conclusive, cannot dislodge the legal presumption unless the husband proves non-access. Adultery may be established, but it does not automatically disprove legitimacy.”
The judgment also referred to Supreme Court decisions warning courts against ordering such tests casually. Courts must balance the interests of all parties, especially the child, and avoid turning the child into a pawn in parental disputes.
Family Court Order Overturned
The Bombay High Court concluded that the Family Court had failed to consider the legal and emotional implications of subjecting a child to a DNA test. It noted that there was no express denial of paternity by the husband and no strong evidence to challenge the child’s legitimacy.
“When parents are engaged in conflict, the Court must act as the guardian of the child’s rights,” the Judge stated. “Ordering a DNA test without necessity is not only avoidable but also harmful to the child’s welfare.”
As a result, the High Court set aside the Family Court’s order and dismissed the husband’s plea for a DNA test.
Case Title:- S.K.P. & Another vs. K.S.P.
Writ Petition No. 3499 of 2020