Can a Court Order a Child's DNA Paternity Test?

Aparna and Ajinkya Firodia married according to Hindu rites in Pune on November 23, 2005. Their first son, Master “Y,” was born on December 21, 2009, and their second son, Master “X,” was born on July 17, 2013.

On September 14, 2016, the husband said he found intimate messages showing that his wife was in a relationship with Kshitij Bafna. He claimed that, when confronted, she admitted the relationship. That November, he privately arranged a DNA test through DNA Labs India. The report, dated November 24, 2016, said that he lacked genetic markers that must be contributed by the biological father and placed the probability of paternity at 0%.

The husband filed a divorce petition under Sections 13(1)(i) and (ia) of the Hindu Marriage Act on June 1, 2017. On November 9, 2020, during those proceedings, he applied under Exhibit 84/B for a court direction requiring Master “X” to undergo DNA testing at the Government Central Forensic Laboratory. He argued that the test was the only scientifically reliable way to prove his wife's adultery. He also claimed to possess call recordings, transcripts and his wife's daily diary.

The Pune Family Court allowed the application on August 12, 2021. It relied on the private DNA report, treated it as material that could be considered under Section 14 of the Family Courts Act, and said that the wife's refusal could lead to an adverse inference under Illustration (h) to Section 114 of the Evidence Act. The Bombay High Court upheld that order on November 22, 2021. It also relied on Sharda v. Dharmpal to say that Article 21 rights are subject to reasonable restrictions and noted the husband's assurance that he would not disown the child. The Supreme Court set both orders aside and allowed the appeal, with cost of Rs. 1 lakh payable by the respondent-husband to the appellant-wife, to be paid before the Family Court within one month.

Section 112 of the Indian Evidence Act, 1872 says that birth during a valid marriage is conclusive proof of legitimacy unless the parties had no access to each other at any time when the child could have been begotten. Section 4 says that when a fact is declared to be conclusive proof, the court cannot allow evidence to disprove it. Read together, the provisions create a strong shield for a child born during marriage, with non-access as the only statutory escape route.

The court explained that “access” means the existence of an opportunity for sexual relations, not necessarily actual cohabitation. Conversely, a husband may live with his wife and still prove non-access through unambiguous evidence such as serious illness or impotency. The husband's own pleadings hurt his case: he said he learned of the alleged adultery in September 2016 and had no physical relationship with his wife after that. In his concurring opinion, Justice V. Ramasubramanian reasoned from that pleading that the husband had access both when the child was conceived and for a full period of three years after the child's birth.

That answers the question: does a genuine DNA report override Section 112 if the husband had access to his wife? It does not. Even a genuine DNA report cannot rebut Section 112's conclusive presumption of legitimacy when access existed. The report may prove adultery, but the child would remain legitimate in law. Dipanwita Roy v. Ronobroto Roy did not change that result because that husband had specifically pleaded non-access and the court had found that a DNA test was the only available route to the truth.

The Supreme Court viewed the request through the child's perspective, not the parents' dispute. It held that children have a right not to have their legitimacy questioned frivolously in court and that this right is an essential part of privacy. It also referred to the United Nations Convention on the Rights of the Child and stressed the child's identity, bodily autonomy and best interests.

The core holding was:

• A husband cannot use a child's DNA test as a shortcut to prove adultery. He must first establish non-access at the relevant time; if he has other evidence, such as call recordings, transcripts or a daily diary, the court can examine that evidence instead.
• A mother's refusal to expose her child to DNA testing does not automatically prove adultery. Section 114(h) is discretionary, and a mother acting as the child's natural guardian cannot be punished with an adverse inference for protecting the child's welfare.

The court also distinguished Dipanwita Roy. That case involved compelling facts, a specific non-access plea and no practical alternative to DNA testing. The Firodia facts lacked all three, so neither the DNA-test direction nor the threatened adverse inference could stand.

• The wife should gather the divorce petition, the DNA-test application, the private DNA report dated November 24, 2016, the Family Court order dated August 12, 2021, the Bombay High Court judgment dated November 22, 2021, and any material showing whether the spouses had access to each other at the relevant time.
• The husband must first collect strong evidence of non-access when the child could have been conceived. That means unambiguous proof of serious illness, impotency, or impossibility of a sexual relationship during that period; otherwise his alternative adultery evidence must stand on its own.
• The application or objection belongs before the Family Court hearing the pending divorce petition. An aggrieved party can challenge the Family Court's order in the High Court, as Aparna Firodia did, and then approach the Supreme Court.
• The single biggest mistake is treating a child's DNA test as a routine or collateral means of proving adultery. Without first proving non-access, the request is likely to fail under Section 112.