Unwarranted intrusion: Why Kerala High Court rejected husband’s plea for DNA test to determine paternity

‘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.