The High Court of Judicature at Allahabad has dismissed an application seeking a DNA test to determine the paternity of a child born during the subsistence of a valid marriage. The Court held that the conclusive presumption of legitimacy under Section 112 of the Indian Evidence Act remains “irrebuttable” even if a DNA test suggests otherwise, provided the husband and wife had “access” to each other at the time of conception.
The Single Judge Bench of Justice Nand Prabha Shukla observed that the law protects “social parentage over biological parentage” and that DNA tests should not be ordered as a matter of course or routine.
Background of the Case
The applicant wife was married in 2012. In 2018-19, while the marriage was still valid, she allegedly entered into an extra-marital relationship with the opposite party no. 2. On July 12, 2020, a son was born.
Suspecting the child’s paternity, the husband conducted a private DNA test which reportedly disclosed that he was not the biological father. Subsequently, he moved a divorce petition on August 24, 2020. Meanwhile, the wife filed a maintenance petition under Section 125 Cr.P.C. against the opposite party no. 2 on behalf of the child. During these proceedings, she moved an application seeking a DNA test of the child and the opposite party no. 2 to determine paternity.
The Additional Principal Judge, Family Court No.1, Agra, rejected this application on January 19, 2026, leading to the present challenge under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
Legal Analysis and Court’s Observations
The Court centered its analysis on Section 112 of the Indian Evidence Act, 1872, which provides that a child born during a valid marriage is “conclusive proof” of legitimacy unless “non-access” between the spouses is established.
Justice Shukla referred to several landmark Supreme Court precedents to elucidate the legal position:
- Presumption of Legitimacy: Citing Ivan Rathinam v. Milan Joseph (2025), the Court noted that Section 112 creates a strong presumption that the husband is the father. The burden is on the person asserting ‘illegitimacy’ to prove it specifically through ‘non-access.’
- The Meaning of ‘Access’: The Court clarified that ‘access’ refers to the “possibility of an opportunity for marital relations,” not necessarily the act itself. Non-access means the “impossibility, not merely inability” of marital relations.
- DNA Test as a Last Resort: Referring to Goutam Kundu v. State of W.B. (1993) and Bhabani Prasad Jena (2010), the Court emphasized that a DNA test can only be ordered if there is a “strong prima facie case” and an “eminent need,” where the truth cannot be reached otherwise.
The Bench highlighted a critical observation from Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2024):
“In such situation, adultery may be proved on the part of the wife, the legitimacy of the child, would still be conclusive in law. The conclusive presumption of legitimacy of a child borne during the subsistence of a valid marriage is that the child is that of the husband and it cannot be rebutted by a mere DNA test report.”
Court’s Conclusion
The Court found that since the wife and her husband were living together during the time of conception, they had “access” to each other. The Court remarked:
“Even if it is presumed that Applicant No.1 developed extra marital relationship with opposite party no.2 especially when the Applicant No.2 was begotten, such a fact, per se, would not be sufficient to displace the presumption of legitimacy. It seems that the husband and opposite party no. 2 both had simultaneous access.”
Relying on the recent Supreme Court decision in R. Rajendran vs. Kamar Nisha (2025), the Court reiterated that Section 112 “stands as a bulwark against the casual illegitimization of children.”
Finding no “eminent need” for DNA profiling, the Court upheld the Family Court’s decision and dismissed the application.
Case Details Block:
- Case Title: Smt Mansi Tyagi And Another Versus State of U.P. and Another
- Case No.: APPLICATION U/S 528 BNSS No. 10028 of 2026
- Bench: Justice Nand Prabha Shukla
- Date: May 4, 2026
