Author: – Devanshu Anand
Collage: – Faculty of Law, University of Delhi
This phrase “Maternity is a fact and Paternity is a surmise” it is classic legal maxim followed from ancient Roman law principallatter adopted by English common Law. Which mean mother connection with child is biologically undisputable, but the fatherhood has presumption that something may be true.Historically established fact is that fatherhood is required to rely on circumstantial evidence, legal presumption or inference.According to English legal scholar William Blackstone children are either legitimate or spurious i.e. Basterds.
In India the legitimacy of child is historically accepted and codified in Section 112 of the Indian Evidence Act, 1872currently it is mentioned in Section 116 of Bharatiya SakshyaAdhiniyam, 2023.Which express Section 116. 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 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.
For nearly hundreds of years, Indian law accepted husband of a married women as a father of her child essentially by default, for prioritizing the social stability over biological truth. Here how this principle has been applied historically and why it is so rigidly followed
1. The Shield: Section 116 of BSA – under section 116, if childis born during the continuance of valid marriage or within 280 days of its dissolution, it is treated as “Conclusiveproof” on the husband’s paternity.
2. The paternity only be questioned when father proof that he has “no access” to each other at any time when he could have been begotten.
To save children from stigma of dastardliness or illegitimacy, the Indian Evidence Act, 1872 and Bharatiya Sakshya Adhiniyam, 2023 place Burden of Proof on the party who is rejecting the paternity rather than the party who seeking the confirmation.
So, the question is can a father ask for DNA test for the confirmation of the paternity? if DNA test for paternity allow is it violating the rights of the child?
Foundational precedent: Goutam Kundu V. State of West Bengal
All these questions are already discussed by The Supreme Court of India in case Gautam Kundu V. State of West Bengal 1993 laydown following rules for blood test or DNA test for prove paternity-
1. In India courts cannot order blood test as a matter of course.
2. There must be some strong prima facie case that the husband should establish non-access to wife and the presumption under section 116 of BSA 2023.
3. The court must examine the negative effect of ordering a blood test, whether it will have the effect of branding the child as a bastard and the mother as unchaste.
4. No one can be compelled to give blood sample for analysis, the reason being that this test is a constraint on one’s personal liberty.
Evolution of the Doctrine: Key Supreme Court Decision
A. Kamti Devi V. Poshi Ram – (2001)
The Supreme Court reaffirmed that Section 112 IEA/ Section 116 BSA creates a conclusive presumption of legitimacy and that DNA evidence alone cannot displace this presumption without first establishing proof of non-access. This case showed that the law gave more importance to the legal presumption than the scientific evidence.
B. Sharda V. Dharmpal – (2003)
A three Judge Bench of the Supreme Court held that matrimonial courts possess the power to order medical examinations under Section 75(e) and Order 26 Rule 10A CPC, and that such order dose not per se breaches Article 21 of the constitution. The court found no dispute with Goutam Kundu case, describing that the power exists but must be exercise with judicial discretion. Analytically, if a party refuses to submit to a court order test, the court may draw an adverse inference against the party.
C. Shri Banarsi Dass V. Mrs. Teeku Dutta – (2005)
The Supreme Court warned that DNA testing must not be directed routinely,
As scientific accuracy alone can’t defeat the conclusive presumption of section 112 IEA/ Section 116 BSA when access between the spouse is visible.
This decision reinforced the principle that the law contain in his statutory presumption retains primacy even in the face of available scientific mechanism.
D. Bhabani Prasad Jena V. Convenor Secretary, Orissa State Commission for Women – (2010)
The Supreme Court held that DNA tests should be ordered only when extremely needed, not on a mere request, and only after treating the privacy rights equally, the search for truthand also for the child’s welfare. The extreme need standard requires that the truth cannot be reached by any other evidentiary means.
E. Nandla Wasudeo Badwaik V. Lata Nandlal Badwaik – (2014)
The Supreme Court held that where scientific evidence conclusively disproves paternity, the truth must prevail over the legal presumption. This is an exception based on the specific facts of the case. It should not be treated as a new general rule as Goutam Kundu. The decision is significant because it acknowledge that in extreme cases, DNA evidence can override the statutory provision but only where the scientific finding is conclusive and unambiguous.
F. Dipanwita Roy V. Ronobroto Roy – (2015)
The Supreme Court simplified Goutam Kundu and held that modern DNA testing conclusively establishes biological relationships when paternity or maternity is in question. The court allowed DNA testing as evidence where a husband raises serious doubts to the paternity, and reiterated that a wife’s refusal to comply with a court ordered DNA test permits the court to draw an adverse inference. This case arose from a matrimonial dispute in west Bengal and is therefore particularly significant for courts in that jurisdiction.
Current Legal Position in India
The following principle represents the settled law on DNA test and Blood test for paternity in India as –
1. Presumption of legitimacy is near conclusive: under Section 112 IEA/ Section 116 BSA, a child is born during a valid marriage is presumed to be legitimate. This presumption can be opposed only by proof of non-access, not by DNA evidence alone.
2. Strong prima facie case required: the party who objected the legitimacy must first establish a strong prima facie of non-access before the court. If court will satisfy then court will consider ordering a DNA test.
3. No routine ordering of DNA and Blood tests: Courts will not direct DNA tests and Blood tests as a matter of course, on mere suspicion, or to facilitate exploration inquiries.
4. Extremely need standard: A DNA will be ordered only when it is extremely needed when the truth cannot be found by any other evidentiary means.
To sum up, Indian law treats fatherhood differently from motherhood – not because science can’t prove it, but because the law values protecting a child from the label of illegitimacy more than settling every doubt about biology. A DNA test may give a certain answer, but court release it, like water from a locked tap, only when there’s truly no other option left. This balance between scientific truth and social protection is what has made Section 116 BSA (Section 112 IEA) survive for over a century, even in the age of DNA science.
