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4 min readNew DelhiMar 26, 2026 08:00 AM IST
The Kerala High Court recently declined a husband’s plea seeking a DNA test to determine the paternity of a child born during wedlock, reiterating that such tests cannot be ordered routinely and that the law strongly presumes the legitimacy of children born within a valid marriage.
Justice K Babu dismissed the plea challenging an order of the family court, Pathanamthitta, which had rejected the husband’s application for a DNA test in maintenance proceedings initiated under Section 125 of the Code of Criminal Procedure.
“The language of the relevant statutory provisions leans strongly in favour of the legitimacy of a child born during the subsistence of a valid marriage. “Embedded in the presumption” is the legal recognition that the husband is deemed to be the father of the child born to his wife,” the order dated March 24 read.
Court’s Observation
“The law strongly presumes the legitimacy of children born within a valid marriage — DNA tests cannot be ordered routinely”
Case At A Glance
Judge
Justice K Babu, Kerala High Court
Court Below
Family Court, Pathanamthitta — had already rejected DNA plea
Proceedings
Maintenance case under Section 125 CrPC
Key Timeline
Marriage: 2019 | Child born: 2020 | Order: March 24
Why the Petition Failed
Admitted intercourse: Petitioner acknowledged sexual intercourse with his wife — undermining the paternity challenge
No ‘non-access’ plea: The only legal route to rebut Section 112 — that the parties had no access to each other — was never pleaded
No claim of impotency: Petitioner made no such claim, removing another possible ground for rebuttal
No prima facie case: Court found insufficient grounds to dislodge the strong statutory presumption of legitimacy
The Law: Section 112, Indian Evidence Act
A child born during a valid marriage is conclusive proof of legitimacy — unless it is shown that the parties had no access to each other at the time of conception. The presumption acts as a safeguard against unwarranted intrusion into a child’s legally protected status.
Supreme Court: DNA test must meet stringent safeguards — not a matter of course
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‘Presumption of child’s legitimacy’
- Admittedly, the child was born during the subsistence of the marriage between the petitioner and his wife.
- For examining whether a direction for DNA profiling is required, it is necessary to evaluate the statutory framework governing the presumption of legitimacy of a child born during the continuance of valid marriage, as provided under Section 112 of the Indian Evidence Act.
- The presumption under Section 112 of the Evidence Act operates as “Conclusive Proof” of the legitimacy of a child born during the subsistence of a valid marriage, by presuming that the parents had access to each other at the relevant time.
- The presumption operates as a safeguard against unwarranted intrusion into the legally protected status of legitimacy.
- The Apex Court has consistently held that DNA testing cannot be ordered as a matter of course and must be subject to stringent safeguards to protect the dignity of individuals and the legitimacy of children born during the wedlock.
- The petitioner has not pleaded a case of non access.
- The trial court noted that he has admitted sexual intercourse between himself and his wife. He has no case that he is impotent.
- The petitioner has failed to establish a prima facie case to dislodge the presumption under Section 112 of the Indian Evidence Act. The order impugned, therefore, requires no interference.
Plea for DNA test
- The marriage between the petitioner and his wife was solemnised in 2019 and a child was born in 2020.
- In the maintenance proceedings, the petitioner sought a direction to subject their child to a DNA test for determining paternity.
- The petitioner pleaded that even on the day of marriage, his wife was reluctant to have sexual intercourse and she abstained from sexual intercourse for the initial period of 20 days.
- The petitioner alleged that he subsequently compelled her to have sexual intercourse and after the lapse of 18 days, she had disclosed that she became pregnant.
- The petitioner’s wife had resisted the application saying that she had not abstained from sexual intercourse.
- She submitted that she was subjected to sexual intercourse by the petitioner on several occasions and was thrown out of the shared household.
Section 112 of the Indian Evidence Act
Section 112 says- 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 it could have been begotten.
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