S.112 Evidence Act | Compelling DNA Test To Determine Child's Paternity Without Imminent Need Violates Sanctity Of Marriage: Karnataka HC

The Karnataka High Court has said that a DNA test must be permitted only in terms of Section 112 of the Evidence Act, after demonstrable non-access between the parents during the period of birth of the child is proved, as the presumption under Section 112 is rooted in public morality and societal peace.

The court added that compelling such tests without a need for the same violates the sanctity of marriage as well as the fundamental right to privacy and dignity granted to a couple.

For context: Section 112 of the Indian Evidence Act (116 of Bharatiya Sakshya Adhiniyam) reads thus: “112. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

Justice M Nagaprasanna said, “Section 112 of the Indian Evidence Act is steeped in the maxim pater est quem nuptiae demonstrant – the father is he whom the marriage indicates, which would mean the presumption of legitimacy of a child born during lawful wedlock...Compelling such tests without imminent need, imperils not only the sanctity of marriage, but legitimacy of the child and also becomes violative of the fundamental rights to privacy and dignity, as obtaining under Article 21 of the Constitution of India.”

He added “The court answering an application (seeking direction of conducting a DNA test) must bear in mind the interwoven delicate balance between the test, right to privacy and dignity, as ordained in the Constitution of India. The concerned Court must not for the asking permit DNA test, unless the condition stipulated in Section 112 is fulfilled, which would be pleading and proving of non-access at the relevant point in time.”

The court held thus while allowing a petition filed by Hareesh @Harishkumar questioning an order passed by civil court dated 05-04-2025, allowing an application filed by A S Umesh the plaintiffs in the partition suit under Order XXVI Rule 10A of the Civil Procedure Code.

Before the trial court the plaintiff led their evidence, examination and cross-examination happened and after completion of plaintiffs' evidence, the petitioner was examined as DW-1 and the matter was posted for his cross-examination. At that stage, the plaintiffs file the application seeking DNA test of defendants 1 (father) and 3 (petitioner) to determine blood relation and paternity by way of scientific examination through an expert. The said application came to be allowed by the concerned Court.

The plaintiffs contended that defendant No.1 is said to have undergone vasectomy in the year 1979 and the child was allegedly born in the year 1986. He would, therefore, contend that the 3rd defendant is not the son of defendants 1 and 2. Hence DNA test, in the case at hand, was imperative.

However, petitioner argued that defendants 1 and 2 are husband and wife. They have several matrimonial proceedings between them. Defendant No.3 is born from the wedlock. Therefore, the plaintiffs cannot file an application questioning paternity of defendant No.3 when there is ample evidence to show that marriage had happened between them. The impugned order of permitting DNA test of the petitioner is violative of Articles 19 and 21 of the Constitution of India.

As per Section 112 of the Indian Evidence Act, the plaintiffs have to plead and prove non-access of defendant No.1 to defendant No.2 at the relevant point in time. No such plea has ever been raised. Therefore, the order permitting DNA tests ought not to have been granted by the concerned Court.

The bench referred to Section 112 of the Evidence Act and said, “The afore-quoted provision declares that birth during marriage is conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is the legitimate son of that man, unless it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

It then said, “The order of the concerned Court, if considered on the bedrock of the principle laid down by the Apex Court in the afore-noted judgments, it would undoubtedly run foul of those principles. DNA test is ordered for the asking by the plaintiffs, on the specious plea that vasectomy operation had happened upon the husband 8 years before the birth of the child.”

It was stated that in the case at hand, a plethora of marital disputes existed between defendants 1 and 2 for ages. The child is born from the said wedlock, and the concerned Court blissfully ignored this fact.

The bench then held, “The concerned Court ignores every tenet; there was no imminent need for conducting a DNA test; the order ignores the purport of Section 112 of the Indian Evidence Act and presumption of paternity is given a go-bye. No material is placed before the Court depicting non-access at the time of birth. In the absence of any pleading of the kind, the concerned court has treated the DNA test as a frolicsome act and ordered as a matter of course. Right to privacy and dignity is lost sight of.”

Accordingly, it allowed the petition and quashed the impugned order. All consequential proceedings, including the purported DNA examination and any report prepared thereto, are all declared null and void, in the eyes of law.

The court also directed the Registry to circulate this order to the concerned Courts, to bear in mind the observations made in the course of the order, while answering an application filed seeking a DNA test.

Appearance: Advocate Vijay Kirshna Bhat M for Petitioner.

Advocate M Murali Babu for R1, R2.

Citation No: 2025 LiveLaw (Kar) 296

Case Title: Hareesh AND A S Umesh & Others

Case No: WRIT PETITION No.20342 OF 2025

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