DNA Test Of Child Can't Be Ordered Routinely Without Prima Facie Proof Of Non-Access Between Spouses: Kerala High Court
The Kerala High Court has held that a DNA test cannot be ordered as a matter of course merely on the basis of an allegation disputing the paternity of a child born during the subsistence of a valid marriage. [2026 LiveLaw (Ker) 542]Justice Jobin Sebastian made the observation while dismissing a criminal miscellaneous case challenging the refusal of the Judicial First Class Magistrate...
The Kerala High Court has held that a DNA test cannot be ordered as a matter of course merely on the basis of an allegation disputing the paternity of a child born during the subsistence of a valid marriage. [2026 LiveLaw (Ker) 542]
Justice Jobin Sebastian made the observation while dismissing a criminal miscellaneous case challenging the refusal of the Judicial First Class Magistrate Court, Wadakkanchery, to direct DNA examination of a minor child in proceedings under the Protection of Women from Domestic Violence Act, 2005.
The proceedings before the Magistrate had been initiated by a woman and her minor child seeking maintenance and return of gold ornaments. During the pendency of those proceedings, the husband sought an order directing the child to undergo DNA examination, claiming that he was not the child's biological father. The Magistrate dismissed the application prompting the challenge before the High Court.
The High Court noted that proceedings under Section 12 of the Domestic Violence Act are concerned with adjudicating allegations of domestic violence and granting statutory reliefs, rather than determining biological parentage.
The Court further observed that in the present case, the marital relationship between the parties was not disputed. It added that in the absence of material showing that the husband had no access to the woman during the relevant period, the statutory presumption under Section 112 of the Indian Evidence Act, 1872.
“In the absence of any material to establish that the respondent had no access to the first petitioner during the relevant period, the presumption under Section 112 of the Indian Evidence Act, 1872 operates in favour of the child's legitimacy.” Court observed.
Referring to Section 112, the Court said the provision embodies a rule of public policy intended to protect the legitimacy of children born during a valid marriage. Under the provision, such a birth is treated as conclusive proof of legitimacy unless it is shown that the spouses had no access to each other at the time when the child could have been conceived.
The Court thus held that in the absence of specific pleadings and prima facie material demonstrating non-access between the spouses during the relevant period, a direction for DNA profiling cannot be sought.
“A DNA test is not to be directed routinely and may be ordered only in appropriate and deserving cases where the Court finds such examination necessary for the proper adjudication of the dispute.” Court added.
The petitioner had also contended that the parties had agreed during mediation to undergo a DNA examination. The High Court rejected the argument that such an understanding could, by itself, require the court to order the test.
While noting that a settlement or understanding reached during mediation is relevant and deserves consideration, the Court held that parties cannot, by consent, compel a court to pass an order contrary to law or public policy.
The Court held that the presumption under Section 112 continued to operate since there was no material on record establishing, even prima facie, that the spouses had no access to each other during the relevant period. It thus found that the Magistrate was justified in declining to direct the DNA examination.
The Court thus dismissed the petition.
Counsel for Petitioner: Dileep Varghese, Tesmy Vargheese
Counsel for Respondent: V. M. Rushda, Legit T. Kottakkal, V.R. Ramlal (Sr. PP)