DNA Testing and Presumption of Legitimacy

Source: Supreme Court 

Why in News? 

The bench of Justices Prashant Kumar Mishra and Vipul M. Pancholi in R. Rajendran v. Kamar Nisha and Others (2025) set aside the High Court's direction for DNA testing, holding that the statutory presumption under Section 112 of the Indian Evidence Act, 1872 (IEA)  remained unrebutted and DNA testing was neither necessary nor proportionate to the criminal investigation. 

What was the Background of R. Rajendran v. Kamar Nisha and Others (2025) Case? 

• Respondent No.1 (Kamar Nisha) married Abdul Latheef in 2001, who subsequently approached the appellant (Dr. R. Rajendran) for treatment of a skin ailment. 
• The appellant allegedly developed physical relations with Respondent No.1, resulting in the birth of a child on March 8, 2007, during the subsistence of her valid marriage with Abdul Latheef. 
• According to Respondent No.1, Abdul Latheef deserted her when the child was approximately one and a half years old after learning of the extramarital relationship. 
• Respondent No.1 appeared on a Tamil TV channel program publicly narrating her complaint, which led to registration of FIR No. 233/2014 against the appellant for offences under Sections 417 and 420 IPC and Section 4(1) of the Tamil Nadu Women Harassment Act. 
• The Police sought directions for DNA profiling of the appellant, Respondent No.1, and the child, but the appellant refused to comply. 
• Respondent No.1 filed multiple writ petitions seeking transfer of investigation and DNA testing, with the High Court ultimately directing the appellant to undergo DNA profiling. 
• The birth certificate, school transfer certificate, and school admission record all recorded Abdul Latheef as the father of the child. 

What were the Court's Observations? 

Section 112: Conclusive Presumption of Legitimacy: 

• The Court emphasized that Section 112 of the Indian Evidence Act, 1872 (116 of Bharatiya Sakshya Adhiniyam, 2023) establishes a conclusive presumption of legitimacy for children born during valid marriage, which can be rebutted only by strong evidence proving "non-access" (impossibility of sexual relations) between spouses during conception. 

DNA Testing Cannot Be Ordered as Matter of Course: 

The Court held that DNA testing requires satisfaction of "twin blockades": 

• Insufficiency of existing evidence to maintain presumption of legitimacy. 
• Positive finding that DNA test serves best interests of all parties. 

Respondent Failed to Establish Non-Access: 

• The Court found that the child was born during valid marriage, with statutory presumption operating in Abdul Latheef's favor as legitimate father. 
• No material established that Abdul Latheef was physically absent during the conception period, and there was complete absence of specific pleading establishing non-access between the spouses. 
• At most, this was a case of simultaneous access, which does not negate the husband's access or displace the presumption. 

Right to Privacy Under Article 21: 

• Forcefully subjecting individuals to DNA testing constitutes grave intrusion upon privacy protected under Article 21, which must satisfy the threefold test of legality, legitimate aim, and proportionality. 
• Respondent No.1's willingness to waive her privacy does not extend to waiving the appellant's and child's independent privacy rights. 

Paternity Collateral to Criminal Charges: 

• The Court held that paternity is collateral to the primary allegations of cheating and harassment, and DNA testing must have direct nexus with offences under investigation. 
• The Court rejected drawing adverse inference under Section 114 for refusing DNA testing, as the statutory presumption under Section 112 remained unrebutted. 

What is DNA Testing? 

About:  

• DNA (Deoxyribonucleic Acid) testing is a scientific method that analyzes genetic material to determine biological relationships, particularly paternity and maternity. 
• DNA testing involves comparing genetic markers between individuals to establish biological connections with over 99% accuracy in paternity cases. 
• The test can be conducted using various samples including blood, saliva, hair follicles, or cheek swabs. 

Types of DNA Tests: 

• Paternity Testing: Determines biological father of a child. 
• Maternity Testing: Establishes biological mother (rare cases). 
• Kinship Testing: Determines relationships between relatives. 
• Identity Testing: Used in criminal investigations and mass disasters.

What is Section 112 of IEA?

Section 112 - Birth during marriage, conclusive proof of legitimacy.

• 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 s/he is the legitimate daughter/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 he could have been begotten.
• This provision is contained in Section 116 of Bharatiya Sakshya Adhiniyam, 2023 (BSA).