Case at a Glance
A wife’s domestic violence case had been pending since 2013 when the husband, in 2023, applied for a DNA test to show that their son was not his. The trial court dismissed the application because he showed no material on non-access. The Madras High Court upheld that order, holding that under Section 116 of the Bharatiya Sakshya Adhiniyam (Section 112 of the Evidence Act) a child born during a valid marriage is conclusive proof of legitimacy unless non-access is proved, that DNA tests cannot be ordered on vague allegations, and that the belated plea was filed to humiliate the wife. It imposed ₹50,000 costs, payable to her.
The parties married on 24.11.2008 and have a son. On 12.08.2013 the wife filed a domestic violence petition before the Welfare Officer; the case later came before the Judicial Magistrate, Polur and, after transfer, was renumbered as DVC No. 6 of 2020 before the District Munsif-cum-Judicial Magistrate, Kalasapakkam.
In 2023 — about a decade after the DV petition — the husband filed an application under Section 112 of the Indian Evidence Act seeking a DNA test to establish that the child was not his. On 01.12.2023 the trial court dismissed it because there was no material to presume that he had no access to his wife at the relevant time. In revision, his counsel argued there was no access before conception or during pregnancy and that he had consistently denied paternity. The wife did not appear in the revision.
The Key Question Before the Court
Can a husband, years into his wife’s domestic violence and maintenance proceedings, obtain a DNA test of their child without first showing non-access during the marriage?
Why the Court Refused the DNA Test
The Court explained that under Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section 112 of the Evidence Act), a child born during a valid marriage is conclusive proof of legitimacy unless it is shown that the spouses had no access to each other when the child could have been conceived. The husband had not established non-access. Relying on Goutam Kundu v. State of West Bengal, (1993) 05 SC CK 0038, (1993) 3 SCC 418, Ivan Rathinam v. Milan Joseph, (2025) 01 SC CK 1602, 2025 INSC 115, Smt. Selvi v. State of Karnataka, (2010) 05 SC CK 0048 (decided 05.05.2010) and Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, (2023) 02 SC CK 0077 (decided 20.02.2023), it held that “DNA tests cannot be ordered merely on vague allegations unless a strong prima facie case is established.”
The Court added that adultery must be proved independently and that “The DNA Testing cannot be used as a short cut method to establish infidelity that might have occurred over a decade ago.” Placing the child’s interest at the centre, it said: “The child cannot be used as a pawn to show that the mother of the child was living in adultery.” Finding the long delay unexplained, it held the application to be frivolous and filed to humiliate the wife and prolong her case, and therefore dismissed the revision with costs.
What the Court Actually Held
- A child born during a valid marriage is conclusive proof of legitimacy under Section 116 BSA / Section 112 Evidence Act unless non-access is proved.
- A DNA test cannot be ordered on vague allegations without a strong prima facie case.
- DNA testing cannot be used as a shortcut to prove a spouse’s alleged infidelity, and the child’s interest must be protected.
- The revision was dismissed, the trial court’s order of 01.12.2023 was confirmed, and ₹50,000 costs were imposed, to be deposited in DVC No. 6 of 2020 within six weeks and released to the wife.
Why This Judgment Matters
- DNA applications are often filed late in maintenance and DV cases; this ruling shows courts will scrutinise timing and motive.
- It applies the new Bharatiya Sakshya Adhiniyam presumption of legitimacy, consistent with the Supreme Court in Ivan Rathinam.
- Costs payable directly to the wife make such tactics expensive.
What Should Advocates Take Away From the Judgment?
For Wives & Mothers
- A belated DNA plea does not automatically succeed; the husband must first prove non-access.
- Courts can award costs in your favour when such pleas are filed to humiliate or delay.
- The child’s welfare and privacy weigh heavily against routine DNA tests.
For Counsel
- Before seeking a DNA test, build a record on non-access at the relevant time.
- Explain any delay; an unexplained decade-long delay was fatal here.
- Cite Goutam Kundu, Ivan Rathinam and Section 116 BSA.
Key Takeaways
- Birth during a valid marriage is conclusive proof of legitimacy unless non-access is shown.
- DNA tests are not ordered on vague allegations.
- DNA testing is not a shortcut to prove adultery.
- Frivolous, belated DNA pleas can attract heavy costs.
Frequently Asked Questions
Can a husband get a DNA test of a child during a maintenance or DV case?
Only if he makes out a strong prima facie case, in particular non-access to his wife at the relevant time. Vague allegations are not enough, as the Madras High Court held here.
What is Section 116 of the Bharatiya Sakshya Adhiniyam?
It corresponds to Section 112 of the Evidence Act and makes birth during a valid marriage conclusive proof of legitimacy unless it is shown that the parties had no access to each other when the child could have been conceived.
Who receives the ₹50,000 costs?
The husband must deposit it to the credit of DVC No. 6 of 2020 within six weeks, and the trial court must release it to the wife; if not deposited, it is to be recovered in accordance with law.
Conclusion
K. Kamaraj v. Susai Ammal makes it clear that a DNA test is not a weapon to be deployed late in a matrimonial dispute to cast doubt on a wife and child. The statutory presumption of legitimacy protects the child, and only a properly founded case of non-access can displace it.
Practical takeaway: Oppose belated DNA applications by pointing to the Section 116 BSA presumption and the absence of non-access evidence — and ask for costs where the plea is plainly tactical.
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