The Madurai Bench of the Madras High Court, presided over by Justice Shamim Ahmed, has held that a DNA test cannot be directed as a matter of routine or used as a shortcut to establish marital infidelity, ruling that the legitimacy and identity of a child cannot be sacrificed to prove allegations against a spouse. The Court dismissed a criminal revision case filed by a husband seeking a DNA paternity test for his minor son in a pending domestic violence case, confirming the trial court’s dismissal order and imposing costs of Rs. 50,000 on the petitioner for attempting to humiliate and defame his wife.
Background of the Case
The revision petitioner (husband) and the respondent (wife) solemnized their marriage on November 24, 2008, and had a male child named Kalaiarasan. Arising out of a matrimonial dispute, the respondent originally filed a domestic violence petition on August 12, 2013, before the Welfare Officer. The case was subsequently filed before the Judicial Magistrate Court, Polur, as DVC No. 23 of 2017, and later transferred and renumbered as DVC No. 6 of 2020 on the file of the District Munsif Cum Judicial Magistrate, Kalasapakkam, Tiruvannamalai.
In 2023, the petitioner filed an interlocutory application, Crl.MP No. 739 of 2023, under Section 112 of the Indian Evidence Act, seeking a DNA test to establish that the male child was not his biological son. On December 1, 2023, the trial court dismissed the application on the ground that there was no material to presume that the petitioner lacked access to the respondent during the relevant period of conception. Aggrieved by this rejection, the petitioner approached the High Court under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Submissions of the Parties
Appearing for the revision petitioner, counsel Mr. K. Balakrishnan submitted that there was no access between the husband and wife during the relevant period prior to conception and throughout the pregnancy. The counsel contended that the petitioner had consistently and categorically denied paternity from the outset, making a DNA test essential to demonstrate non-access. He argued that applications seeking DNA tests in matrimonial proceedings are maintainable and that the trial court erred in failing to consider the factual matrix of the dispute.
There was no representation for the respondent wife before the High Court; however, the record reflected that her counsel’s submissions had been duly considered by the trial court while passing the impugned order.
Analysis of the Court
Examining the legal issue concerning the invocation of scientific techniques such as DNA testing to adjudicate birth status and paternity, Justice Shamim Ahmed observed that while scientific advancements aid the justice delivery system, an intrusive test directly impacts constitutionally guaranteed protections, including the right against self-incrimination under Article 20(3) and the right to privacy and dignity under Article 21 of the Constitution of India.
The Court referred to Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section 112 of the Indian Evidence Act), which establishes conclusive proof of legitimacy for a child born during the continuance of a valid marriage, unless non-access between the spouses is established. The Bench emphasized that the statutory object of this principle is to prevent unwarranted inquiries into a child’s paternity.
In evaluating the evidentiary threshold required to rebut this presumption, the Court relied on the Supreme Court judgment in Ivan Rathinam v. Milan Joseph (2025 INSC 115), which reaffirmed the parameters established in Goutam Kundu v. State of West Bengal (1993):
“(1) that courts in India cannot order blood test as a matter of course;
_ (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood cannot be entertained._
_ (3) 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._
_ (4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman._
_ (5) No one can be compelled to give sample of blood for analysis.”_
The Court also discussed the Supreme Court rulings in Smt. Selvi and others v. State of Karnataka (2010), concerning bodily and mental privacy and the limits on compulsory testing, as well as Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023), along with the Kerala High Court ruling in Abdurahiman v. State of Kerala (2013).
Applying these principles to the facts at hand, Justice Shamim Ahmed noted that the petitioner had produced no documentary or prima facie evidence to show non-access during the conception period. Furthermore, the petitioner had maintained silence from 2013 until 2023—an unexplained delay of nearly ten years from the initiation of domestic violence proceedings—before seeking a DNA test.
Crucially, the Court observed:
“The DNA Testing cannot be used as a short cut method to establish infidelity that might have occurred over a decade ago or subsequently after the birth of the male child, namely, Kalaiarasan. The question whether a DNA Test should be permitted on the child is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the husband to prove by other evidence the adulterious conduct of the wife, but the child’s right to identity should not be allowed to be sacrificed.”
The Bench determined that the revision petition was a frivolous attempt aimed at protracting the domestic violence and maintenance proceedings, while humiliating and defaming the wife.
Decision of the Court
Finding no illegality in the trial court’s order dated December 1, 2023, the High Court dismissed the criminal revision case.
To address the petitioner’s attempt to publicly defame and humiliate his wife, the Court imposed costs of Rs. 50,000 on him. The petitioner has been directed to deposit the amount to the credit of DVC No. 6 of 2020 before the District Munsif Cum Judicial Magistrate, Kalasapakkam, within six weeks. Upon deposit, the trial court is instructed to release the sum to the respondent forthwith, with directions to initiate recovery proceedings under the law should the petitioner default.
Case Details
Case Title: K. v S
Case No.: Crl.RC.No.2340 of 2026 [Crl.RC(MD)No.2340 of 2026]
Bench: Justice Shamim Ahmed
Date: 09.10.2026
