DNA Paternity Test Cannot Be Ordered Absent Proof of 'Non-Access' Under Section 112: Bombay High Court - 2026-05-31

Beyond the Lab: Bombay High Court Curbs Unrestricted DNA Paternity Testing

In a significant ruling for family law, the Nagpur Bench of the Bombay High Court has reaffirmed the sanctity of the presumption of legitimacy under the Indian Evidence Act. The court set aside an order by a Family Court that had directed a minor child to undergo DNA profiling, emphasizing that scientific testing cannot be used as a tool for "fishing expeditions" in matrimonial conflicts.

The Trajectory of the Dispute

The case originated from a strained marital relationship between the petitioners and the respondent. Following their 2011 marriage, the couple separated in 2013, with the wife pregnant at the time. Despite filing for divorce on grounds including adultery, the husband initiated no specific legal challenge to the paternity of the child born in July 2013 during the initial years of litigation.

However, in 2020, the husband sought a DNA test to "decide the legitimacy" of the child—an application the Family Court erroneously accepted. The wife challenged this directive before the High Court, arguing that there was no evidentiary basis to strip the child of their legal presumption of legitimacy.

Arguments in the Balance

The husband relied on a string of precedents, including Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik , arguing that with modern scientific advancement, DNA evidence should supersede older, rigid statutory provisions. He maintained that the availability of such proof justifies its use to determine the truth of paternal claims.

Conversely, the petitioner-wife argued that the court must protect the best interests of the minor child. She contended that the husband had failed to prove "non-access"—the threshold required to rebut the legal presumption of legitimacy established by Section 112 of the Indian Evidence Act.

Legal Analysis: The Primacy of 'Non-Access'

Justice R.M. Joshi, presiding over the matter, underscored that the law does not allow for a "straitjacket formula." Referring to the recent Supreme Court decision in Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia , the High Court clarified:

1. The Presumption Threshold : Section 112 of the Indian Evidence Act creates a "conclusive proof" of legitimacy for children born during a valid marriage.
2. Defining 'Access' : The court reiterated that "access" refers to the opportunity for sexual relationships, not necessarily continuous cohabitation. To succeed in a DNA test request, the husband must prove, through strong and cogent evidence, that he had no possibility of access to the wife during the period of conception due to reasons like absolute separation, impotency, or incapacity.
3. Child’s Rights : The court pointedly noted that in matrimonial battles, children are often used as instruments of conflict. As such, the court must act as the "custodian of rights of minor child," evaluating the request for testing with extreme caution rather than mere convenience.

Key Observations

• "The presumption of legitimacy, therefore, must be challenged with specific plea of no access for parties to each other during relevant period. Unless case is sought to be made out to that effect, legitimacy of a child could not be challenged."
• "Even, if it is accepted for the sake of argument that the wife conceded the said request, still it was absolutely obligatory for the Court to consider best interest of the child."
• "The fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a child."
• "Thus, father does not dispute the paternity, [the] question of child undergoing [a DNA test] does not arise."

The Verdict and Its Impact

By allowing the petition and dismissing the Family Court’s order for a DNA test, the Bombay High Court has sent a clear message: scientific tests are not a shortcut to evading the burden of proof. The court noted that if the husband seeks to prove his wife's adulterous conduct, he must do so through other available evidence, rather than forcing a child to undergo an intrusive medical procedure.

This judgment serves as a vital safeguard for children, preventing the "unwarranted enquiry" into their legitimacy when legal thresholds for challenging the marriage have not been met. For legal practitioners, the ruling reiterates that "non-access" remains the only gateway to challenging paternity, keeping the focus firmly on the evidentiary requirements of the Indian Evidence Act.