DNA Test Cannot Be Ordered Routinely To Prove Adultery; Presumption Of Legitimacy Of Child Must Prevail: Uttarakhand High Court

The Uttarakhand High Court has held that a direction for DNA examination of a child cannot be issued as a matter of course to substantiate allegations of adultery, particularly in the absence of pleadings and material to rebut the statutory presumption of legitimacy under Section 112 of the Evidence Act. The Court observed that permitting such testing without foundational facts would undermine the legal protection accorded to a child born during a valid marriage and would result in an unwarranted intrusion into the child's dignity and privacy. On this basis, the Court dismissed an appeal challenging the refusal to order DNA testing in matrimonial proceedings.A Division Bench of Justice Manoj Kumar Tiwari and Justice Pankaj Purohit was dealing with an appeal filed by a husband whose application seeking DNA examination of a minor child had been rejected by the Family Court.The appellant-husband had instituted matrimonial proceedings under Section 13 of the Hindu Marriage Act alleging misconduct, including adultery, against his wife. During the pendency of the proceedings, he moved an application seeking DNA examination of the minor child to support his allegations.The Family Court rejected the application, observing that such testing would amount to determining the paternity of the child and could adversely affect the child's rights and future. Aggrieved by this, the husband approached the High Court.The appellant contended that the Family Court had misdirected itself by treating the application as one seeking determination of paternity, whereas his limited prayer was to obtain scientific evidence to substantiate allegations of adultery.It was argued that in matrimonial disputes, direct evidence of adultery is rarely available, and DNA testing may be necessary as a form of scientific proof. The appellant further submitted that adequate safeguards could be put in place to protect the dignity and interests of the child.The Court examined the legal position governing DNA testing in matrimonial disputes and reiterated that Section 112 of the Evidence Act creates a conclusive presumption of legitimacy for a child born during a valid marriage, which can be displaced only by proof of non-access between the spouses.It emphasised that DNA testing cannot be ordered “as a matter of routine” and may be permitted only in exceptional circumstances where strong prima facie material is available. In the present case, the Court found that the appellant had neither pleaded nor attempted to establish non-access between himself and his wife during the relevant period.“At the outset, it is pertinent to note that Section 112 of the Indian Evidence Act is based upon the principle of pater est uem nuptiae demonstrant meaning that "the father is he whom the marriage points out", which seeks to protect children from the social consequences of destitution, bastardy and vagrancy. The provision creates a conclusive presumption of legitimacy when a child is born during the continuance of a valid marriage. Law in this regard is well settled that such presumption can be displaced only by establishing non-access between spouses at the relevant time. The burden to prove non-access lies heavily upon a person who seeks to dislodge the statutory presumption. Judicial pronouncements interpreting Section 112 of the Evidence Act read with Article 21 of the Constitution of India have consistently held that Courts must undertake a careful balancing exercise between the rights of parties, particularly keeping in view the welfare, dignity and privacy of child, before directing DNA examination”, the Court reasoned. The Court further held that allowing DNA examination in such circumstances would effectively bypass the statutory presumption and could lead to serious consequences, including stigma to the child. It further observed that such a direction would amount to an intrusion into the privacy and dignity of the minor, which are protected under Article 21 of the Constitution.Consequently, finding no illegality in the order of the Family Court, the High Court dismissed the appeal and upheld the rejection of the application seeking DNA examination. The Court held that in the absence of foundational pleadings and material to rebut the presumption of legitimacy, no direction for DNA testing could be issued.Case Name: Sunil Singh v Anju Gupta Singh and AnotherCase No.: Appeal From Order No. 25 of 2026Click Here To Read/Download Order

DNA Test Cannot Be Ordered Routinely To Prove Adultery; Presumption Of Legitimacy Of Child Must Prevail: Uttarakhand High Court

Preet Luthra

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