Child Can’t Be Used As Pawn To Show That Mother Was Living In Adultery: Madras High Court Rejects Plea Seeking DNA Test

While denying permission for DNA test, the Madras High Court remarked that the child cannot be used as a pawn to show that the mother was living in adultery.

The Madurai Bench was hearing a Criminal Revision Petition preferred against the Order passed by the Judicial Magistrate.

A Single Bench of Justice Shamim Ahmed observed, “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 said that the DNA Test, as prayed for by the husband, will infringe the fundamental rights of the mother and her child.

Advocate A.K. Manikkam appeared for the Revision Petitioner, while Advocate T. Thirumurgan appeared for the Respondents.

Case Background

The marriage between the Revision Petitioner and the Respondent was allegedly solemnized in 2007 as per Hindu rites and customs. Out of their wedlock, a child was born in 2009. Due to matrimonial dispute which arose between them, they were living separately. The Respondent/wife filed a Petition against the Revision Petitioner/husband before the Palani Divisional Court, seeking a Divorce Order. Subsequently, they jointly filed a memo and obtained divorce in 2012.

Thereafter, the wife filed a Maintenance Petition under Section 125 of the Criminal Procedure Code, 1973 (CrPC). The husband filed a counter affidavit in the said Petition and filed an Application seeking for a DNA test to prove that the child was not born through him and the wife did not file any counter affidavit to that Application. The Trial Court dismissed the said Petition/Application seeking DNA test. This was under challenge before the High Court.

Reasoning

The High Court in view of the facts and circumstances of the case, noted, “… in the present case, this Court does not find any strong prima facie case to allow the request for DNA testing. Further, the Revision Petitioner has not produced a single piece of documentary evidence before this Court to even prima facie support his claim that he is not the biological father of the 2nd Respondent. In the absence of any such evidence, this Court finds it difficult to even presume that a prima facie case exists.”

The Court reiterated that DNA tests cannot be ordered merely on vague allegations unless a strong prima facie case is established.

“It is further observed that these psycho-medicl tests are violative in character, but, at the same time, individual interest cannot be placed above collective interest. Let us fulfill the dream of having crime free society and the maxim "Jura publica anteferendaprivatis juribus" should be followed meaning thereby "public rights are to be preferred to private rights whenever there being a dilemma between individual liberties and security of public interest”, it remarked.

The Court observed that the Forensic science is defined as the application of science in answering questions that are of legal interest and more specifically, forensic scientists employ techniques and tools to interpret crime scene evidence, and use that information in investigations.

“In the present case, it is also seen that Revision Petitioner has remained completely silent from the year he obtained divorce order ie., 04.03.2012 and filing of maintenance petition ie., in the year 2021 until 2025, the year in which the Revision Petitioner filed the present DNA application. No reasonable or acceptable explanation has been provided as to why the Revision Petitioner remained silent for nearly 12 years after getting divorce order dated 04.03.2012 in HMOP No. 17 of 2012 before the Palani Divisional Court Sub-Court, Palani, by filing joint memo”, it added.

The Court further said that his complete silence for the said period only raises further doubts on the genuineness of claim of the Revision Petitioner that he is not the father of the minor female child.

“Moreover, it is well settled by the Honourable Supreme Court and the High Court that a DNA test, though a scientific tool, intrudes into the personal domain and has the potential to violate the right to privacy guaranteed under Article 21 of the Constitution. In sensitive matters involving allegations of paternity, such tests cannot be ordered as a matter of course. Unless the Revision Petitioner satisfies the initial burden of proof and establishes a strong prima facie case, such an intrusive test cannot be permitted. In the present case, this initial requirement has not been met”, it also noted.

Conclusion

The Court elucidated that 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 minor child.

“Therefore, this Court is of the firm view that the Revision Petitioner has not made out any sufficient cause or legal justification to allow the prayer sought for under Section 39 of the Bharatiya Sakshya Adhiniyam. The delay in filing, failure to prove non-access and the legal presumption under Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, all weigh heavily against the Revision Petitioner”, it concluded.

Accordingly, the High Court dismissed the Criminal Revision Petition.

Cause Title- ABC v. XYZ & Anr. (Case Number: CRL.R.C.(MD)No.842 of 2025)

Appearance:

Revision Petitioner: Advocate A.K. Manikkam

Respondents: Advocates T. Thirumurgan and Kayal Vizhi.

Click here to read/download the Judgment