'DNA Test Can't Be Directed In Routine Manner': Allahabad High Court Rejects Husband's Paternity Challenge In DV Act Case

A bench of Justice Chawan Prakash said that such orders for DNA Test can only be passed in specific circumstances where "no chance for cohabitation" is proven between parties during the relevant period.

With this, the Court rejected a husband's plea in a case related to the Protection of Women from Domestic Violence Act (DV Act). The single judge relied heavily on the presumption of legitimacy under Section 112 of the Evidence Act and recent Supreme Court decision in the case of Ivan Rathinam versus Milan Joseph 2025 LiveLaw (SC) 118.

The court was dealing with husband's revision plea against an order passed by the Additional Sessions Judge, Varanasi, who dismissed his appeal against an order passed by the Special Chief Judicial Magistrate denying any order for DNA test.

The case involved a complaint filed by the wife (Opposite Party No. 2) under Section 12 DV Act. The revisionist-husband claimed that although he was married to the opposite party in April 2008, she lived at her matrimonial house for only one week.

It was his case that the wife was a graduate and a teacher in an Inter College and she did not want to live with him because he was an "illiterate villager'.

He contended that the female child born to her in December 2012 was not his biological daughter as his wife had been residing at her parental house since May 2011. Based on these allegations, he moved an application for a DNA test of the child, which the trial court rejected.

The HC also dismissed his revision plea as it referred to Section 112 of the Evidence Act which states that the birth of a child during the continuance of a valid marriage is "conclusive proof" of legitimacy.

The bench said that a successive presumption is established in favor of the legitimacy of a child born during subsistence of a valid marriage and awarded presumption is a legal recognition that the husband is the father of the child born

"This presumption also operates against unwarranted intrusion into the illegally produced status of illegitimacy, thereby ensuring a familiar relationship and protection of the child", the Court added.

The Bench clarified that the presumption can only be displaced if it can be shown that the parties had no access to each other at any time when he [the child] could have been begotten.

The Court noted that 'non-access' implies not just the absence of cohabitation but the complete lack of opportunity for the parties to be together.

The Court observed that in the present case, the revisionist has merely stated that his wife remained in matrimonial house for few days and child is not his biological child and that the courts below had given specific findings and there is no illegality in passing the aforesaid orders.

Thus, finding that the revision lacked merit as that the presumption of legitimacy had not been rebutted, the HC dismissed it.