Safiya Malik

The Madras High Court at Madurai, Single Bench of Justice Shamim Ahmed recently refused a man’s plea for a DNA test to challenge the paternity of a child born during his marriage. The Court held that such tests cannot be used as shortcuts to prove alleged infidelity that may have occurred long ago and must be assessed through the prism of the child, not the parents. Noting the absence of a prima facie case and the petitioner’s prolonged delay, the Bench upheld the Magistrate’s order rejecting the request, citing privacy concerns and the legal presumption of legitimacy.

The case concerned a man who sought a direction from the High Court to order a DNA test to determine whether a child born during his marriage with the respondent was biologically his. The parties were married in 2007, and a daughter was born to them in 2009. Following marital discord, they obtained a mutual divorce in 2012. Nearly nine years later, the former wife filed a petition seeking maintenance for herself and the child. During those proceedings, the man applied for a DNA test, contending that the child was not born to him and alleging that his former wife had engaged in an inappropriate relationship with one of his relatives.

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The application for the DNA test was dismissed by the Judicial Magistrate at Palani, who found no necessity to order such testing. The man thereafter approached the High Court seeking to set aside that decision. Before the High Court, he argued that the DNA test was necessary to establish the truth and that the trial court had erred in rejecting his request without proper consideration. The respondent, represented through counsel, opposed the plea, stating that the child was born within the subsistence of a valid marriage and that the application was filed belatedly without any supporting material.

The Court examined the records and noted that the petitioner had not filed any documentary evidence to prove non-access or to substantiate his claim. It also took into account that the application for a DNA test was made more than a decade after the divorce. Relying on Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, the Court reiterated the presumption of legitimacy of a child born during marriage unless non-access is proved, and found no legal ground to interfere with the Magistrate’s order.

The Court stated: “One has to be conscious of its limitations also. It infringes fundamental rights under Article 20(3) of the Constitution of India and also right to privacy and right to health, which are guaranteed under Article 21.”

Justice Ahmed observed that “the Revision Petitioner has failed to establish non-access. No material has been placed before this Court to disprove access between them in the relevant period before the birth of the 2nd Respondent.”

The Court cited the Supreme Court’s decision in Ivan Rathinam vs. Milan Joseph (Crl.A. No. 413 of 2024, decided on 28 January 2025), which held that DNA tests cannot be directed unless a strong prima facie case is established. Quoting the precedent, the Court observed: “Courts in India cannot order blood tests as a matter of course. There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.” The Court further relied on the judgement in Smt. Selvi & Others vs. State of Karnataka (Criminal Appeal No. 1267 of 2004), which recognized that involuntary medical tests violate the right against self-incrimination and the right to personal liberty.

In another relevant citation, Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia (SLP(C) No. 9855 of 2022, decided on 20 February 2023), the Supreme Court held that DNA testing should not be used as a shortcut to establish allegations of infidelity and that no adverse inference can be drawn if a party declines such testing. Justice Ahmed recorded: “The question whether a DNA test should be permitted on the child is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother was living in adultery.”

The Court held that the petitioner had not demonstrated any valid grounds to warrant interference with the Magistrate’s decision. Justice Shamim Ahmed observed that the plea appeared intended to “humiliate his wife and to defame her name and to protract the maintenance case filed by his wife.”

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The judgment stated: “The Revision Petitioner has failed to establish a prima facie case for directing a DNA test. The long and unexplained delay of nearly 12 years, absence of any documentary or supporting material, the legal presumption of legitimacy under Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, and the privacy concerns involved all weigh heavily against the claim of the Revision Petitioner.”

“The DNA Testing cannot be used as a short cut method to establish infidelity that might have occurred over a decade ago or subsequently after the birth of the minor child.”

Concluding, the Court declared that the order of the Judicial Magistrate, Palani, dated 12 June 2025, rejecting the application for a DNA test, was a “reasoned and speaking order.” Accordingly, the Criminal Revision Case was dismissed, and the connected miscellaneous petition was closed. The Court made no order as to costs.

Advocates Representing the Parties
For the Petitioner: Mr. A.K. Manikkam, Advocate
For the Respondents: Ms. Kayal Vizhi for Mr. T. Thirumurugan, Advocates

Case Title: K v M
Case Number: Crl.R.C.(MD) No. 842 of 2025
Bench: Justice Shamim Ahmed