Isabella Mariam

The High Court of Karnataka Single Bench of Justice M. Nagaprasanna held that an order directing the conduct of a DNA test in a partition dispute was unsustainable in law. The court quashed the impugned order of the trial court which had allowed the plaintiffs’ application for DNA testing of the defendants to determine paternity. The High Court declared that all consequential proceedings, including the DNA examination and any report prepared thereto, were null and void. The court further directed that its observations be circulated to subordinate courts to guide future decisions in such applications.

The matter arose from a suit for partition instituted in O.S. No. 89 of 2016. The plaintiffs, who were the first and second respondents, initiated the proceedings seeking division of joint family properties. The third defendant, the petitioner before the High Court, was also a claimant to the joint family estate. The trial court framed issues on 11 January 2018 and evidence was led by the plaintiffs. Examination and cross-examination followed. On 7 September 2023, the petitioner was examined as DW-1, and the matter was listed for his cross-examination. At that juncture, the plaintiffs moved an application under Order XXVI Rule 10A of the Civil Procedure Code, seeking a DNA test of the first and third defendants, purportedly to establish or disprove paternity.

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The plaintiffs’ application was based on the claim that the first defendant had undergone a vasectomy procedure in 1979, several years before the birth of the third defendant in 1986. They submitted that, given the surgical procedure, the petitioner could not have been born from the marital union between the first and second defendants. Supporting their claim, they relied on medical records and reports showing that no sperm count was found in the first defendant following the vasectomy. They contended that if the petitioner was indeed born in 1986, his birth would be improbable given the operation.

The defendants opposed the application, asserting that there had been several matrimonial proceedings between the first and second defendants in which the marital relationship was not disputed. They stated that the petitioner had been consistently recognized as the child of the first and second defendants in prior legal records and proceedings. They argued that Section 112 of the Indian Evidence Act conferred conclusive proof of legitimacy on a child born during the continuance of a valid marriage, unless non-access was pleaded and proven. They further asserted that no plea of non-access had been raised by the plaintiffs.

Despite objections, the Senior Civil Judge and JMFC at Channarayapatna allowed the plaintiffs’ application on 5 April 2025, directing that the DNA test be conducted between the first and third defendants. The order required them to appear before the Government Hospital, Channarayapatna, for the collection of blood samples to be forwarded for scientific examination.

Aggrieved, the petitioner approached the High Court under Article 227 of the Constitution of India, seeking quashing of the impugned order. The petitioner contended that the trial court’s decision violated his fundamental rights under Articles 19 and 21, particularly the right to privacy and dignity. He further argued that the order disregarded the legal presumption under Section 112 of the Indian Evidence Act.

The respondents argued before the High Court that the DNA test had already been conducted pursuant to the order and that the report was pending submission. They stated the vasectomy procedure as a compelling reason for seeking scientific verification of paternity.

The High Court examined the legal framework under Section 112 of the Indian Evidence Act, which states: “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 Nagaprasanna noted that the provision created a conclusive presumption of legitimacy, rebuttable only upon proof of non-access between the spouses at the relevant time. He recorded: “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.”

In reviewing precedents, the court relied extensively on judgements of the Supreme Court. In Goutam Kundu v. State of West Bengal, it was held: “Courts in India cannot order blood test 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.” Similar principles were reiterated in Banarsi Dass v. Teeku Dutta, Bhabani Prasad Jena v. Orissa State Commission for Women, Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, and Ivan Rathinam v. Milan Joseph. These judgments stated that DNA tests should only be permitted in cases of eminent need, and not routinely or for fishing inquiries.

The High Court observed: “The Apex Court observes that in a matter where paternity of a child is in issue, the use of DNA test is extremely delicate and sensitive aspect. Therefore, the Court must not allow it as a matter of course… If DNA test is eminently needed, only then it is to be allowed, strictly within the parameters of Section 112 of the Indian Evidence Act.” The court stressed that absent pleadings of non-access, directing a DNA test would disregard the statutory presumption.

Justice Nagaprasanna also considered the interplay between the right to privacy and the ordering of DNA tests. Referring to Ashok Kumar v. Raj Gupta, he recorded: “When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy.” The court further cited Ivan Rathinam, noting: “Forcefully undergoing a DNA test would subject an individual's private life to scrutiny from the outside world. That scrutiny, particularly when concerning matters of infidelity, can be harsh and can eviscerate a person's reputation and standing in society.”

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The judgment stated that the trial court had disregarded long-standing matrimonial disputes between the first and second defendants, where the marital relationship had been accepted. The High Court concluded that there was no imminent need to order a DNA test. “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.”

Having considered the facts, submissions, and legal principles, the High Court issued the following directions: “Writ Petition is allowed. The order dated 05-04-2025 passed by the Senior Civil Judge & JMFC, Channarayapatna on the application filed by the plaintiffs under Order XXVI Rule 10A of the CPC in O.S.No.89 of 2016 stands quashed. All consequential proceedings, including the purported DNA examination and any report prepared thereto, are all declared null and void, in the eyes of law. Registry is directed 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 DNA test.”

The court also placed its appreciation on record for the assistance rendered by the Law Clerk-cum-Research Assistant.

Advocates Representing the Parties

For the Petitioners: Sri Vijay Krishna Bhat M., Advocate

For the Respondents: Sri M. Murali Babu, Advocate

Case Title: Sri Hareesh @ Harishkumar v. Sri A.S. Umesh & Others

Case Number: Writ Petition No.20342 of 2025 (GM - CPC)

Bench: Justice M. Nagaprasanna