Father Is He Whom The Marriage Indicates; DNA Tests Must Be Permitted Only On Pleading & Proving Of Non-Access: Karnataka High Court

The Karnataka High Court held that the blood test – DNA test must be permitted only in terms of the rigor of Section 112 of the Indian Evidence Act, 1872 (IEA).

The Court held thus in a Writ Petition filed against the Order of the Senior Civil Judge, allowing an Application of the Plaintiffs under Order XXVI Rule 10A of the Civil Procedure Code, 1908 (CPC).

A Single Bench of Justice M. Nagaprasanna observed, “The blood test – DNA test must be permitted only in terms of the rigor of Section 112 of the Evidence Act, which would be a demonstrable non-access during the period of birth of the child, as the presumption under Section 112 is rooted in public morality and societal peace.”

The Bench said that Section 112 of the IEA is steeped in the maxim pater est quem nuptiae demonstrant – the father is he whom the marriage indicates, which would mean the presumption of legitimacy of a child born during lawful wedlock.

Advocate M. Vijay Krishna Bhat appeared for the Petitioner while Advocate M. Murali Babu appeared for the Respondents.

Case Background

The Petitioner was the 3rd Defendant and the Respondents were Plaintiffs who instituted a Suit for partition. The Defendants filed their written statement and the evidence was led by the Plaintiffs. Examination and cross-examination happened and after completion of the Plaintiff’s evidence, the Petitioner was examined and the matter was posted for his cross-examination.

At that stage, the Plaintiffs filed an Application under Order XXVI Rule 10A of the CPC seeking DNA test of Defendants to determine blood relation and paternity by way of scientific examination through an expert. The said Application was allowed by the concerned Court, despite vehement objections of Defendants. Hence, the Petitioner was before the High Court.

Reasoning

The High Court in the above context of the case, noted, “On a blend of the judgments rendered by the Apex Court and different High Courts, what would unmistakably emerge is, the caution of the Apex Court followed by other High Courts that compelling such tests without imminent need, imperils not only the sanctity of marriage, but legitimacy of the child and also becomes violative of the fundamental rights to privacy and dignity, as obtaining under Article 21 of the Constitution of India.”

The Court emphasised that the Court answering an Application must bear in mind the interwoven delicate balance between the test, right to privacy and dignity, as ordained in the Constitution of India.

“The concerned Court must not for the asking permit DNA test, unless the condition stipulated in Section 112 is fulfilled, which would be pleading and proving of non-access at the relevant point in time”, it added.

The Court further observed that plethora of marital disputes existed between Defendants for ages and the child is born from the said wedlock and the concerned Court has blissfully ignored this fact.

“Therefore, the Courts answering the application shall strictly adhere to the law, as narrated in the course of the order. … Tested on the anvil of the preceding analysis, the concerned Court ignores every tenet; there was no imminent need for conducting a DNA test; the order ignores the purport of Section 112 of the Indian Evidence Act and presumption of paternity is given a go-bye”, it also said.

Conclusion

The Court concluded that no material is placed before the Court depicting non-access at the time of birth and in the absence of any pleading of the kind, the concerned Court has treated the DNA test as a frolicsome act and ordered as a matter of course.

“Right to privacy and dignity is lost sight of. Therefore, on all the aforesaid circumstances, the order of the concerned Court is rendered unsustainable and unsustainability would lead to its obliteration”, it held.

Accordingly, the High Court allowed the Writ Petition, quashed the impugned Order, and directed the Registry to circulate the Judgment to the concerned Courts to bear in mind the observations made, while answering an Application filed seeking DNA test.

Cause Title- Hareesh @ Harishkumar v. A.S. Umesh & Ors. [Case Number: WRIT PETITION No.20342 OF 2025 (GM - CPC)]

Click here to read/download the Judgment