DNA and Paternity Tests in Matrimonial Cases: When Indian Courts Order Them and What Refusal Means

A court can order a DNA test in a divorce case in India, but it will not do so on demand. A child born to a married woman is conclusively presumed to be her husband's legitimate child under Section 112 of the Indian Evidence Act, 1872, now Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, and the only way through that presumption is to show that the spouses had no access to each other when the child could have been conceived. The Supreme Court has held, from Goutam Kundu in 1993 to Aparna Ajinkya Firodia in 2023 and Ivan Rathinam in 2025, that a paternity test is directed only where the applicant has a strong prima facie case, the test is eminently needed and the child's interest has been weighed. A spouse who refuses a test that has been validly ordered risks an adverse inference, but a mother who refuses on the child's behalf does not.

Part of the family and divorce law practice at S Jain & Attorneys, Bangalore.

This guide is for a husband or wife in a divorce, maintenance or custody matter who wants to obtain or resist a court-ordered DNA test. It covers the presumption of legitimacy, the seven Supreme Court decisions that set the threshold, the adverse inference on refusal and its limits, the maintenance angle under Section 125 CrPC, now Section 144 BNSS, the child's privacy, where the application is made, who pays, and what each spouse should do before filing. It does not cover DNA evidence in criminal trials, which runs on different rules.

Can a court order a DNA test in a divorce case in India?

Yes, a matrimonial court has the power to direct a party to undergo a medical or scientific test, and the Supreme Court settled that in Sharda v Dharmpal on 28 March 2003. That was a divorce petition under Sections 12(1)(b) and 13(1)(iii) of the Hindu Marriage Act in which the husband asked for the wife's medical examination on the question of unsoundness of mind. The Court held that a matrimonial court has the power to order a person to undergo a medical test, that such an order does not violate the right to personal liberty under Article 21, that the power is to be used only where the applicant has a strong prima facie case and there is sufficient material before the court, and that a refusal after the order entitles the court to draw an adverse inference. Sharda located the power in the court's inherent jurisdiction under Section 151 of the Code of Civil Procedure and in Section 75(e) read with Order 26 Rule 10A, which lets a civil court issue a commission for a scientific investigation that cannot conveniently be conducted in court.

The power exists, but the threshold is high. Ten years before Sharda, in Goutam Kundu v State of West Bengal on 14 May 1993, the Court refused a husband's application for a blood group test of his wife and child in a maintenance case and laid down five propositions: courts in India cannot order a blood test as a matter of course, a prayer made to hold a roving inquiry cannot be entertained, there must be a strong prima facie case in which the husband establishes non-access to dispel the presumption, the court must carefully examine the consequence of the test and whether it would brand the child illegitimate and the mother unchaste, and no one can be compelled to give a blood sample. Bhabani Prasad Jena v Orissa State Commission for Women on 3 August 2010 added the phrase that now governs every application: a DNA test is to be directed only when it is eminently needed, after balancing the parties' interests, and never in a routine manner whenever a request is made. Bhabani also held that a State Commission for Women had no power to order a DNA test at all and that the matrimonial court seized of the dispute was the competent forum for any paternity issue.

What does Section 112 of the Evidence Act, now Section 116 BSA, actually say?

Section 116 of the Bharatiya Sakshya Adhiniyam, which reproduces Section 112 of the Evidence Act, makes the fact that a person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution while the mother remains unmarried, conclusive proof that he is the legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The words "conclusive proof" carry a defined meaning. Section 4 of the Evidence Act, now Section 2(1)(b) of the BSA, provides that when one fact is declared conclusive proof of another, the court shall regard the second fact as proved on proof of the first and shall not allow evidence to be given to disprove it. That is why a DNA report, however accurate, cannot simply be filed against the presumption. The report is evidence tendered to disprove legitimacy, and the section shuts that door unless non-access is first shown.

Access and non-access have settled meanings. In Goutam Kundu the Court explained that they mean the existence or non-existence of opportunities for sexual intercourse, not actual cohabitation, and that the presumption can be displaced only by a strong preponderance of evidence and not by a mere balance of probabilities. Ivan Rathinam v Milan Joseph, decided on 28 January 2025, put it more sharply: non-access means the impossibility, not merely the inability, of the spouses to have marital relations. Spouses on non-speaking terms, a spouse in an extra-marital affair, or spouses living in separate houses in the same village do not by themselves prove non-access, and an additional or multiple access by a third person does not negate the access between the spouses. The person asserting illegitimacy must first plead non-access and then substantiate it with evidence.

Deadline warning. Section 116 BSA covers a child born during the marriage or within 280 days after its dissolution while the mother remains unmarried. A child born after that window, or after the mother has remarried, is outside the presumption in favour of the former husband, so the date of the decree of divorce and the date of birth are the first two facts to check before anyone talks about a test.

Why the child's legitimacy and the husband's adultery ground are two different questions

The confusion that drives most DNA applications is the belief that proving the child is not the husband's proves the wife's adultery, and that the divorce court should therefore order the test. Section 13(1)(i) of the Hindu Marriage Act allows divorce where the other party has, after the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Adultery is a fact about the spouse's conduct. Legitimacy is a status conferred on the child by Section 116 BSA. In Aparna Ajinkya Firodia v Ajinkya Arun Firodia on 20 February 2023, the Supreme Court held that questions as to the illegitimacy of a child are only incidental to a claim for dissolution of marriage on the ground of adultery, and that allowing DNA tests on a routine basis to prove adultery would rewrite the maxim that the father is he whom the nuptials point out.

Justice Ramasubramanian's concurring opinion in Aparna described the mechanics. The main product of a DNA test on the child is paternity, and the wife's adultery is only a by-product that follows as a corollary. A husband cannot ask the court to let him have both the product and the by-product, or in the alternative to draw an adverse inference against the wife if she declines, because that leaves her a choice between the devil and the deep sea. The question whether a child should be tested is to be analysed through the prism of the child and not the parents, and the child cannot be used as a pawn to show that the mother was living in adultery. The husband remains free to prove the adultery by other evidence. Section 112 is not a shield for adulterous conduct, but anything that would destroy its legal effect cannot be used on the footing that it is being done to achieve another result. Our guides on proving adultery in divorce and adultery as a ground for divorce cover the evidence that does work for the ground itself.

Which Supreme Court judgments govern DNA tests in matrimonial cases?

Seven decisions do the work, and reading them in sequence shows the threshold rising and the child moving to the centre. The table lists what was asked in each case, what the Court held and the test it applied.

Three ideas run through all seven decisions and they are worth fixing in mind before reading the procedure.

What must the applicant show before a paternity test is ordered?

Aparna Firodia gathered the earlier law into five principles for directing a DNA test of a minor child. First, such a test is not to be ordered routinely in matrimonial disputes, and in cases alleging infidelity it is to be directed only where there is no other mode of proving the assertion. Second, a child born during a valid marriage may be tested only where there is sufficient prima facie material to dislodge the Section 112 presumption, and where no plea of non-access has been raised, a test may not be directed at all. Third, a court is not justified in mechanically ordering a test where paternity is not directly in issue but is merely collateral to the proceeding. Fourth, the mere fact that a party disputes paternity does not mean the court should order a test. The parties should be directed to lead evidence, and only if the court finds it impossible to draw an inference from that evidence, or the controversy cannot be resolved without the test, may it direct one. Fifth, when a test is sought to prove adultery, the court must be mindful of the consequences for the child, including inheritance and social stigma.

Applied to the facts before it, the Court found that the husband had not raised any plea of non-access, that his own petition showed access because he pleaded that he stopped physical relations only after discovering the alleged adultery three years after the child's birth, and that he had call recordings and a diary which he could summon to prove the infidelity without touching the child. The application was a shortcut, and it cost him Rs 1 lakh.

Common mistake. Filing a DNA application whose own pleadings admit access. In Aparna Firodia the husband pleaded that he lived under the same roof and stopped physical relations only after discovering the adultery, years after the child was born. That pleading proved access, triggered the conclusive presumption and ended the application before the science was ever reached.

In practice the application is won or lost at the pleading and not at the laboratory. A divorce petition drafted to plead cruelty and adultery in general terms, without a dated and specific averment of non-access, cannot later be rescued by a laboratory report, and the very paragraphs pleading a shared household and continued cohabitation become the evidence of access that defeats the prayer. The useful discipline is to decide, before the petition is filed, whether the case is truly about paternity or only about the spouse's conduct, because the two need different pleadings, different evidence and different relief, and a court reads an application that blurs them as an attempt to use the child to win the adultery ground.

What happens if a spouse refuses a court-ordered DNA test?

Nobody can be physically compelled to give a sample. Goutam Kundu said so in 1993, and every later decision repeats it. What changed after Sharda in 2003 is the consequence of refusing an order that has been validly made. Sharda held that if a person refuses to submit to a medical examination despite the court's order, a strong case for drawing an adverse inference is made out, and pointed to Section 114 of the Evidence Act, which lets a court presume that evidence which could be and is not produced would, if produced, be unfavourable to the person withholding it. That provision is now Section 119 of the BSA, and its illustrations (g) and (h) carry the same wording as before. Illustration (h) presumes that if a man refuses to answer a question which he is not compelled by law to answer, the answer, if given, would be unfavourable to him.

Dipanwita Roy in 2014 shows the inference at work. The husband alleged adultery and named the child's father, and the Court agreed that but for a DNA test it would be impossible for him to prove the assertion. Instead of compelling the wife, it gave her liberty to comply with or disregard the direction. If she complied, the test would settle the accusation either way, and the Court pointed out that the test was equally her means of proving that she had not been unfaithful. If she declined, the allegation would be decided by drawing the presumption under Section 114, especially illustration (h). The Court described this as preserving individual privacy to the extent possible without sacrificing the cause of justice, and as deciding the issue of infidelity alone without expressly disturbing the presumption of legitimacy.

Aparna Firodia then drew the limits. Justice Ramasubramanian described three stages: the court's consideration whether to order a test at all, the order itself, and the party's decision to comply or refuse. He called the first stage the outer fence and the third the inner fence, and held that a husband cannot jump to the inner fence and ask for an adverse inference before he has crossed the outer fence by persuading the court that a test should be ordered. Even at the inner fence, an adverse inference can be drawn only against a person who refuses for her own benefit. A mother who refuses to subject the child to a test in order to protect the child's interests is acting as the child's natural guardian, and no adverse inference of adultery can be drawn against her for that. Section 114, now Section 119 BSA, says the court "may" presume and not "shall", so the court retains a discretion not to presume at all. Justice Nagarathna's lead opinion reached the same place: on the mother declining, no adverse inference could be raised either as to the child's paternity or as to the alleged adultery, which had to be proved on its own evidence.

Key takeaway. Refusal has consequences only after a valid order, and only against the person whose own interest the refusal serves. A spouse who refuses to give his or her own sample after a properly reasoned order invites the Section 119 BSA presumption. A mother who declines to have the child tested to protect the child is not punished for it.

Can a DNA report override the presumption once it is on record?

It can, but only in the narrow situation of Nandlal Wasudeo Badwaik v Lata Nandlal Badwaik, decided on 6 January 2014. There the husband had denied paternity in a Section 125 CrPC maintenance case, the Supreme Court itself directed a DNA test at the Regional Forensic Science Laboratory at Nagpur, allowed a re-test at the Central Forensic Science Laboratory at Hyderabad when the wife asked for one, and both reports excluded him as the biological father. The wife then argued that the presumption of legitimacy could not be rebutted by a DNA test. The Court held that where the truth is known there is no room for a presumption, that a presumption must yield to proof where there is evidence to the contrary, and that when a conclusive proof envisaged by law conflicts with proof based on scientific advancement accepted by the world community, the latter must prevail. It said it could not compel the husband to bear the fatherhood of a child when scientific reports proved the contrary, set aside the maintenance ordered for the daughter, and directed that the amounts already paid should not be recovered.

Aparna Firodia explained why Nandlal does not open the door for everyone. In Nandlal the test had been ordered by the Court without opposition, the report was on the record, and the argument about Section 112 was raised only after the result went against the wife. Where a court-ordered report is available and conflicts with the presumption, it cannot be ignored. Where no test has been validly ordered, Nandlal has no application, and the question remains whether one should be ordered at all. The Court also had before it a report the husband had obtained from a private accredited laboratory without any order, which the Family Court had read under Section 14 of the Family Courts Act. That report did not carry the day. A private test does not create the plea of non-access that the law requires, and it does not answer the question whether the test was eminently needed.

Nandlal also explained the older line of Kamti Devi v Poshi Ram, which it quoted. Kamti Devi had said that where husband and wife were living together at the time of conception, the conclusiveness of Section 112 would remain even against a DNA result. The Nandlal bench read that as a decision on its own facts, where non-access had been found and no DNA report existed, and not as a ruling that DNA evidence is to be ignored. Ivan Rathinam in 2025 closed the loop from the other direction by holding that legitimacy determines paternity under Section 112 until the presumption is rebutted by proving non-access, and that paternity and legitimacy are not distinct or independent concepts in law.

DNA tests and child maintenance under Section 125 CrPC, now Section 144 BNSS

A DNA test in a maintenance case has a different purpose from one in a divorce case, and the courts treat the motive with suspicion. Section 144(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, which replaces Section 125 CrPC, obliges a person with sufficient means to maintain his legitimate or illegitimate child who is unable to maintain itself. Illegitimacy does not end a child's claim against its actual father. What the presumption of legitimacy does is fix, in law, who that father is. In Goutam Kundu the husband's application for a blood test was found to be nothing more than an attempt to avoid paying maintenance without making out any ground for the test, and it was refused. In Nandlal the excluded husband was relieved of maintenance to the daughter only because a court-ordered test was already on record.

Ivan Rathinam is the maintenance case from the child's side. A son born in 2001 during his mother's marriage to another man, who had lived with her from 1989 until 2003, claimed maintenance under Section 125 CrPC from the man his mother later named as his biological father and sought a DNA test against him. The civil courts had already refused a declaration of paternity because the mother had not proved non-access with her husband. The Supreme Court held that the concurrent finding of access meant the son was the legitimate child of the mother's husband, that a maintenance claim founded on a perceived relationship of paternity with a third party stood negated, and that the maintenance petition was barred by res judicata once the legitimacy question had attained finality. The Court also held that a suit about an alleged extra-marital relationship is not a matrimonial cause within the exclusive jurisdiction of the Family Court, so the civil court had rightly entertained it. For the money side of a child's claim, see our guides on child support in India and maintenance under Section 125 CrPC.

Does the child's right to privacy and identity block the test?

Privacy is a fundamental right. The nine-judge bench in Justice K.S. Puttaswamy v Union of India on 24 August 2017 held that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III. Sharda, decided before Puttaswamy, had already held that the right is not absolute and that where the legislature has conferred a right on one spouse to seek divorce on a particular ground, that right competes with the other spouse's privacy and the court must balance them, so a matrimonial court's order on a strong prima facie case does not breach Article 21. The two positions sit together: the court has the power, and privacy is one of the interests it must weigh before using it.

Aparna Firodia moved the child's own rights to the centre. The Court observed that a child's privacy is not equivalent to an adult's but that children have a recognised entitlement to preserve their identity, that details of parentage are an attribute of that identity, and that long-accepted notions about a child's parentage must not be frivolously challenged in court. A request for a DNA test of the child competes both with the Section 112 presumption and with the imperative of bodily autonomy, and the court must consider the stigma of illegitimacy and its inheritance consequences, which do not fade with time. Ivan Rathinam applied the Puttaswamy framework directly to a DNA direction. Any invasion of privacy must satisfy the three-fold requirement of legality, need in terms of a legitimate aim, and proportionality, and if even one condition fails the direction is an unwarranted invasion of Article 21. The Court added that being forced to undergo a DNA test exposes a person's private life to harsh outside scrutiny that can destroy reputation and mental health, so a person has the right to refuse in order to protect dignity and privacy, and it warned that casting aspersions on a married woman's fidelity through such a probe can ruin her standing in society. Our guide on evidence in divorce cases and what privacy forbids deals with the wider privacy rules for other kinds of proof.

Where and how is the application for a DNA test made?

The application is made to the court already seized of the matrimonial or maintenance proceeding, and nowhere else. Section 7 of the Family Courts Act, 1984 gives the Family Court jurisdiction over suits for dissolution of marriage, for a declaration as to the legitimacy of any person, and for maintenance, and Section 7(2)(a) gives it the Magistrate's jurisdiction over maintenance under Chapter IX CrPC, now Chapter X BNSS. Section 21 of the Hindu Marriage Act and Section 10(1) of the Family Courts Act apply the Code of Civil Procedure to those proceedings, and Section 10(2) applies the criminal procedure code to the maintenance side. The steps below follow the sequence the Supreme Court has laid down.

1. Confirm the forum. The divorce court, the maintenance court or the Family Court hearing a legitimacy declaration is the only body that can direct a test. In Bhabani Prasad Jena a direction by a State Commission for Women was set aside for want of power, and the Court said any paternity issue would be decided by the matrimonial court already seized of the dispute.
2. Plead non-access first, with dates and places. Section 20 of the Hindu Marriage Act requires the petition to state the facts on which relief is claimed as distinctly as the case permits and to be verified. Aparna Firodia holds that where no plea of non-access is raised, a DNA test may not be directed, so the plea must sit in the petition or the written statement before any application is filed.
3. File the application in the pending case under Section 151 of the Code of Civil Procedure, read with Order 26 Rule 10A, which lets the court issue a commission for a scientific investigation. Sharda identified both provisions as the source of the power, and Ivan Rathinam confirmed that Section 151 CPC read with Section 7 of the Family Courts Act gives the Family Court inherent powers to make orders necessary for the ends of justice.
4. Put the prima facie material on the record. That means documents supporting the impossibility of marital relations at the relevant time, such as proof of residence in different cities, travel records or medical evidence, and a candid statement of what other evidence exists on the issue. Aparna Firodia requires the court to ask whether the controversy can be resolved on that evidence before it reaches for the test.
5. Argue the outer fence. The court decides whether a test should be ordered at all, weighing the strength of the non-access case, the eminent need for the test, the child's identity and privacy, and the stigma and inheritance consequences. Only if it crosses this stage does it pass an order.
6. If a test is ordered, the court names the laboratory and fixes the mechanics. In Nandlal the Supreme Court directed the husband and wife to make a joint application to a government forensic laboratory, to present themselves with the child on the date the laboratory fixed, and required the laboratory to send its report to the Court within four weeks. A re-test at a second laboratory was allowed when the wife asked for one.
7. Deal with compliance or refusal, the inner fence. A party who refuses to give his or her own sample faces the Section 119 BSA presumption described above. A mother who declines to have the child tested to protect the child does not, on the authority of Aparna Firodia.
8. Test a wrong order promptly. Sharda noted that the exercise of this discretion is subject to the High Court's supervisory jurisdiction under Section 115 CPC or Article 227 of the Constitution, and both Dipanwita Roy and Aparna Firodia reached the Supreme Court from orders made on such applications.

The Family Court's procedure is looser than a civil court's on one point. Section 14 of the Family Courts Act lets it receive any report, statement, document or information that may assist it, whether or not it would be admissible under the Evidence Act. That is how a privately obtained DNA report gets read in the Family Court, as it was in Aparna Firodia, but admissibility of a document is not the same as an order for a test, and the Supreme Court set the direction aside despite the report. Our guide on Family Court procedure in India covers how applications in a pending case are listed and heard.

Who pays for the DNA test and where is it done?

The applicant ordinarily pays, and the court chooses the laboratory. In Nandlal the Supreme Court directed that the expenses of the test be borne by the husband who had sought it, and it agreed to consider his prayer only after he had deposited all arrears and current maintenance for the wife and child. Both tests in that case were done at government forensic science laboratories. In Aparna Firodia the husband's application asked for a test at the Government Central Forensic Laboratory, even though he already held a report from a private laboratory described as ISO 17025 certified. Courts prefer a government or court-nominated laboratory for the obvious reason that the chain of custody of the samples and the neutrality of the report are then beyond dispute. No fetched authority fixes a fee, and laboratory charges vary with the laboratory and the number of persons sampled, so treat any figure quoted to you as an estimate until the court's order names the institution.

What should a husband do before asking for a DNA test?

Start with the dates. If the child was born during the marriage or within 280 days of its dissolution, the conclusive presumption applies and the only route is non-access. Then audit access honestly. If the spouses lived under one roof at the time of conception, the application is likely to fail on the pleadings, as it did in Aparna Firodia, and the court may add costs. If there was a genuine period of impossibility, gather the documents that prove it before drafting, because the plea has to be specific and verified under Section 20 of the Hindu Marriage Act. Next, decide what the case is really about. If the goal is a divorce for adultery, collect the evidence of the conduct itself, which the Supreme Court has repeatedly said is the proper route, and read our guide on WhatsApp chats as evidence in family cases for the certificate rules that govern electronic proof. If the goal is to contest maintenance for the child, remember that Goutam Kundu treats a test sought to avoid maintenance as a roving inquiry, and that Nandlal required all arrears to be deposited before the prayer was even considered. Do not arrange a private test on the child without the mother's consent and the court's order. It proved nothing in Aparna Firodia, it is precisely the kind of unilateral act the Court criticised, and it can be turned against the person who did it.

What should a wife do when a DNA test is sought?

Read the application against the pleadings first. If the petition contains no averment of non-access, or if its own paragraphs admit a shared household at the relevant time, the application can be opposed at the outer fence on Aparna Firodia alone, without any argument about the science. If non-access is pleaded, meet it with the evidence of access, which needs only opportunity and not proof of cohabitation. Separate the two roles the Supreme Court has identified. A refusal to give her own sample after a valid order carries the Section 119 BSA risk described in Dipanwita Roy. A refusal on the child's behalf, made to protect the child's identity and status, carries no adverse inference under Aparna Firodia, and the objection should be framed in those terms. Where the allegation is false and the test is unavoidable on the facts, Dipanwita Roy is a reminder that the test is also the wife's most conclusive means of clearing her name. Whatever the outcome on paternity, the child's maintenance claim survives, because Section 144 BNSS covers a legitimate or illegitimate child alike, and Section 16 of the Hindu Marriage Act protects the legitimacy of children of void and voidable marriages, which our guide on annulment of marriage in India explains.

The three stages the Supreme Court described in Aparna Firodia are the map for both sides, and each stage has its own question.

Frequently Asked Questions

This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.

Related Guides

If this is a live problem rather than background reading, our family and divorce law practice handles these matters from Bengaluru, including for clients who cannot attend court in person. These guides go deeper on the neighbouring questions:

• Proving Adultery in Divorce: What the Law Requires
• Adultery as a Ground for Divorce in India
• Evidence in Divorce Cases: What Courts Allow, What Privacy Forbids, and How Proof Is Lawfully Gathered
• WhatsApp Chats as Evidence in Divorce and Family Cases: The BSA 2023 Rules
• Child Support in India: Who Pays, How Much, and Until What Age
• Maintenance Under Section 125 CrPC: Who Can Claim and How Much
• Annulment of Marriage in India: Void, Voidable, Grounds and Time Limit