Justice Shamim Ahmed made it clear that DNA tests could not be used as shortcuts to prove alleged infidelity that may have taken place decades ago.
Live law
The Madras High Court recently refused a man’s application seeking a DNA test of his child, alleging that the child born to the couple during their marriage was not his.
While doing so, Justice Shamim Ahmed made it clear that DNA tests could not be used as shortcuts to prove alleged infidelity that may have taken place decades ago. The court added that the necessity of DNA tests should be determined through the prism of the child and not that of the parents.
“ The 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/the 2nd Respondent. 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 court said.
The court further held that the child should not be used as a pawn to show that the child’s mother was living in adultery. The court also observed that the husband can always bring in other evidence to establish the adultery of the wife, and the child’s identity should not be sacrificed for such claims.
“ 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. Further, in the context of the present case, this Court is of the view that the DNA Test, as prayed for by the Revision Petitioner, will infringe the fundamental rights of the Respondents,” the court further observed.
The court was hearing a revision petition filed by the husband-father against the order of the Judicial Magistrate dismissing his application for a DNA test. It was submitted that the couple married in 2007 and a child was born to them in 2009. However, due to a matrimonial dispute between the parties, they started living separately, and the wife filed for divorce in 2012. Subsequently, the pair jointly filed a memo and obtained a divorce in 2012.
The court was further informed that after the divorce, the wife filed a maintenance petition under Section 125 of the CrPC. The husband had filed an application seeking for DNA test to prove that the child was not born through him. This application was, however, dismissed, against which the husband had approached the High Court by way of a revision petition.
The husband argued that the DNA test was necessary to determine the truth and that not doing so would cause him irreparable loss and hardship.
On perusing the facts of the case, the court opined that there was no prima facie case to allow the request for DNA testing. The court added that the husband had not produced any evidence to support his claim that he was not the biological father of the child. The court added that even s per the decisions of the Supreme Court, DNA tests could not be ordered merely on vague allegations unless a strong prima facie case was established.
The court also noted that the husband had filed the application for a DNA test 12 years after the divorce and 3 years after filing of the maintenance petition and had given no reason or acceptable explanation for the delay. this silence, the court noted, only raised suspicion on the genuineness of the claims.
The court thus opined that the application for a DNA test was made only to humiliate the wife and to defame her, and to protract the maintenance case filed by the wife. The court held that the long and unexplained delay of 12 years, absence of materials, and legal presumption of legitimacy under Section 118 of the BSA would weigh heavily against the husband. The court thus held that the husband had not made out any sufficient cause or legal justification to allow the DNA examination under Section 39 of the Bharatiya Sakshya Adhiniyam.
The court thus dismissed the revision petition, noting that there was no merit.
Counsel for Petitioner: Mr. A. K. Manikkam
Counsel for the Respondent: Ms. Kayal Vizhi For Mr. T. Thirumurugan
Case Title: K v. M
Citation: 2025 Livelaw (Mad) 340
Case No: CRL.R.C.(MD) No.842 of 2025 and CRL MP(MD)No.8958 of 2025
