2025 INSC 1304
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1013 OF 2021
R. RAJENDRAN ….APPELLANT(S)
VERSUS
KAMAR NISHA AND OTHERS ….RESPONDENT(S)
J U D G M E N T
PRASHANT KUMAR MISHRA, J.
1) This Appeal calls in question the impugned judgment dated 10.05.2017 passed by High Court of Madras at Madurai in Writ Appeal (MD) No.521 of 2017, whereby the High Court directed the appellant to appear before the Dean, Government Rajaji Hospital, Madurai on or before 19.05.2017, for collection of blood samples for DNA profiling as ordered by the learned Single Judge in W.P. (MD) No.15208 of 2016.
FACTUAL MATRIX
2) Respondent No.1 married one Abdul Latheef in the year 2001. Abdul Latheef was suffering from a skin ailment and, therefore, he approached the appellant, a doctor, for treatment. The appellant successfully treated Abdul Latheef’s condition, which led him to confide in the appellant regarding his lack of progeny. Abdul Latheef requested the appellant to refer his wife, respondent No.1, to Dr. Indira, the appellant’s first wife and a Gynaecologist, for the necessary treatment. However, instead of referring respondent No.1 to Dr. Indira, the appellant developed physical relations with her, resulting in the birth of a child on 08.03.2007.
3) When the child was approximately one and a half years old, the appellant continued his extramarital relationship with respondent No.1.Upon learning this, Abdul Latheef allegedly deserted her. Respondent No.1 then approached the appellant for assistance, as her husband had deserted her. The appellant asked respondent No.1 to pay Rs.3,00,000/- to his econd wife, Dr. Devi, in return for taking her house on lease. Respondent No.1 complied, taking the house at Door No.1, Thanjavur Road, Pattukkottai Taluk, Pattukkottai, on lease from 20.08.2013.
4) According to respondent No.1, the appellant frequently visited her house and spent time with her. She subsequently asked him to marry her and make their relationship public. Upon his refusal, a quarrel ensued on 09.05.2014. Thereafter, the appellant began avoiding her. Unable to sustain herself, respondent No.1 approached “Z” Tamil T.V. channel and appeared on a programme titled “Solvathellam Unmai”, publicly narrating her complaint. This led to the registration of F.I.R. No.233/2014 dated 124.06.2014 against the appellant for offences under Sections 417 and 420 of the Indian Penal Code, 1860 and Section 4(1) of the Tamil Nadu Women Harassment Act.
5) Subsequent to the registration of the FIR, the Police moved an application before the Judicial Magistrate, Pattukkottai, seeking directions to send the appellant, respondent No.1, and the child for DNA profiling.
Directions were issued to the appellant to appear before the concerned
Medical Officer of the Government Hospital for drawal of blood samples.
However, the appellant failed to comply with the said order.
Criminal Appeal No.1013/2021
FIRST ROUND OF LITIGATION
6) Respondent No.1, aggrieved by the lack of progress in the investigation, filed W.P. (MD) No.7746 of 2015 seeking transfer of F.I.R. in Crime No.233 of 2014 from respondent No.4/The Inspector of Police,Pattukottai Police Station, Pattukottai, Thanjavur District to the Superintendent of Police, C.B.C.I.D., Chennai. The learned Single Judge vide order dated 08.06.2015 disposed of the writ petition directing respondent No.3/Superintendent of Police, Thanjavur District to transfer the pending investigation to any other investigation officer, while directing him to monitor and supervise the investigation.
7) Respondent No.1, finding no appreciable advancement in the investigation despite the judicial intervention, was constrained to prefer another writ petition being W.P. (MD) No.15208 of 2016 seeking transfer of investigation from respondent no.4/The Inspector of Police to the Superintendent of Police, C.B.C.I.D, Chennai. She further sought an interim relief for conducting a DNA test of her child, allegedly born through the appellant. The High Court, vide interim order dated 20.10.2016, directed the appellant and respondent No.1 to appear before the Dean, Thanjavur Medical College Hospital, Thanjavur on 01.11.2016, who in turn was directed to collect blood samples of the parties to obtain a DNA report.
8) Aggrieved by the aforesaid interim order dated 20.10.2016 passed by the learned Single Judge, the appellant filed W.A. (MD) No.1428 of 2016. The Division Bench of the High Court, upon consideration, allowed the said writ appeal, noting that the interim order was passed without affording an opportunity to the appellant. The High Court set aside the order dated 20.10.2016 and remitted the matter back to the Writ Court for fresh consideration.
SECOND ROUND OF LITIGATION
appellant, and vide order dated 24.04.2017 in W.P. (MD) No.15208 of 2016, held that DNA profiling of the appellant, respondent No.1 and the child, was essential for the investigation in Crime No.233 of 2014. Accordingly, the learned Single Judge directed respondent No.6/Inspector of Police, Sethubavachathiram Police Station, Thanjavur District, to produce the appellant, respondent No.1 and the child before the Dean, Rajaji Government Hospital, Madurai on 10.05.2017 at 10:30 a.m. The Inspector of Police was further directed to collect the F.T.A cards from the Forensic Science Department and submit the same to the Dean, Thanjavur Medical College Hospital on 10.05.2017, whereupon the blood samples of all the three parties were to be collected and forwarded to the Tamil Nadu Forensic Laboratory. The DNA report was directed to be sent to the learned Judicial Magistrate, Pattukottai. The learned Single Judge disposed of the said writ petition observing that the investigation in Crime No.233 of 2014 would depend upon the result of the DNA test.
SUBMISSIONS
12) He further contended that Section 112 of the Indian Evidence Act, 18721 mandates that any person born during the subsistence of a valid marriage between his mother and father shall be conclusively presumed to be the legitimate child born out of the wedlock.
Banarsi Dass vs. Teeku Dutta (Mrs) and Another4.
compelled to undergo DNA testing without her prior consent. He also drew our attention to the belated registration of the complaint, submitting that the child was born on 08.03.2007 and the FIR came to be lodged only on 24.06.2014 without an explanation for such delay.
15) Lastly, he placed reliance on the birth certificate, the school certificate, and the school admission certificate, all of which record the name of Abdul Latheef as the father and thus contended that there exists no eminent need for directing DNA testing. Accordingly, he prayed for setting aside of the impugned order.
16) Per contra, learned counsel for respondent No.1 submitted that the eliance placed by the appellant on Goutam Kundu vs. State of West
Bengal and Another5 and Dipanwita Roy vs. Ronobroto Roy6 and similar decisions is misplaced. It was contended that those cases arose in
the context of matrimonial disputes, where the Court’s primary endeavour is to preserve the institution of marriage and protect the legitimacy of children.
livelawcompany.com 2. 2025 SCC OnLine SC 175
3. 2023 INSC 146: [2023] 4 SCR 680
4. (2005) 4 SCC 449
5. (1993) 3 SCC 418
6. (2015) 1 SCC 365
In contrast, the present case arises out of criminal proceedings, where strict proof is essential for establishing the guilt or innocence.
17) It was further submitted that where the woman herself seeks DNA test, there is no element of imputing unchastity. As regards to the
apprehension of illegitimization of the child, it is stated that the child’s present status is akin to that.
18) Respondent No.1 further relied upon Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and Another7 to submit that scientific
advancement prevails over archaic presumptions.
19) It was also contended that this Court may draw adverse inference under Section 114(g) and (h) of the Evidence Act against the appellant for
his refusal to undergo DNA testing. In this regard, strong reliance was placed on Dipanwita Roy (supra).
20) On the aspect of privacy, it was argued that the right to privacy, though constitutionally protected, can be waived by the individual
concerned. Where the person voluntarily seeks the test, plea of privacy cannot be invoked. Reference was made to K.S. Puttaswamy (Retired) and Another (AADHAAR) vs. Union of India and Another8, to submit that once a person consents, the right stands validly waived, and no breach arises from a judicial order directing such examination.
7 (2014) 2 SCC 576nn
8 (2019) 1 SCC 1
QUESTION FOR CONSIDERATION
21) Having heard the learned counsel appearing for both the parties, the question which arises for our consideration is — whether the High Court was justified in directing the appellant to undergo DNA testing.
ANALYSIS
I. THE STATUTORY FRAMEWORK: SECTION 112 OF THE EVIDENCE
ACT
22) This dispute arises from a complaint registered under Sections 417 and 420 of the IPC and Section 4(1) of the Tamil Nadu Women Harassment Act. Respondent No.1 seeks to establish the charges of cheating and harassment by demonstrating that the appellant is the biological father of her child. Consequently, before examining whether a direction for DNA profiling is legally sustainable, it is necessary to evaluate the statutory framework governing the presumption of legitimacy of a child born during the continuance of valid marriage, as enshrined under Section 112 of the Evidence Act. For ease of reference, Section 112 is reproduced below:
“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 he is the legitimate 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.”
(emphasis supplied)
23) It is evident from the statutory language of the provision, that it establishes a conclusive presumption in favour of legitimacy of a child born during the subsistence of a valid marriage. Embedded in this presumption is the legal recognition that the husband is deemed to be the father of the childmborn to his wife. This presumption also operates as a safeguard against unwarranted intrusion into the legally protected status of legitimacy, thereby ensuring stability in familial relationships and the protection of child’s legal and social identity.
24) The presumption under Section 112 of the Evidence Act operates as “Conclusive Proof” of the legitimacy of a child born during the subsistence of a valid marriage, by presuming that the parents had access to each other at the relevant time. Section 4 of the Evidence Act defines “conclusive proof ” as follows:
“ Conclusive proof”.––When one fact is declared by
this Act to be conclusive proof of another, the Court
shall, on proof of the one fact, regard the other as
proved, and shall not allow evidence to be given for
the purpose of disproving it.”
this Act to be conclusive proof of another, the Court
shall, on proof of the one fact, regard the other as
proved, and shall not allow evidence to be given for
the purpose of disproving it.”
This presumption endures unless it is affirmatively established, by strong and unambiguous evidence, that the parties to the marriage had no access to each other at any time when the child could have been begotten, or following the dissolution of the marriage while the mother remains unmarried. Since the law favours legitimacy and frowns upon the illegitimacy, the burden is cast upon the person who asserts “illegitimacy” to displace the presumption.
25) “Access” or “non-access” under Section 112 of the Evidence Act must be understood in a very narrow and specific sense, referring to possibility of sexual relations between the spouses. Non-access denotes the impossibility, not merely the absence or lack of such opportunity. Even where cohabitation exists, non-access may arise due to impotency, serious illness,
physical incapacity or absence during the relevant period. Conversely, the
lack of cohabitation alone does not establish non-access, nor does the
existence of extramarital relations, separate residences, or noncommunication.
26) Allegations of multiple or simultaneous access by third parties do not negate the access between the spouses or establish non-access. Likewise, infidelity on the wife’s part does not, by itself, displace the presumption of legitimacy if the husband had access. The focus remains on the child’s birth, while the time of conception is relevant only to determine whether access between the spouses existed.
II. PRINCIPLES GOVERNING DNA PROFILING
27) The next aspect of the matter that requires consideration is whether the appellant can be subjected to DNA profiling to determine whether he is the biological father of the child born to respondent No.1. It becomes imperative for this Court to examine the legal framework governing the DN testing and its permissible scope, particularly in light of presumption in favour of legitimacy enshrined under Section 112 of the Evidence Act.
28) This Court has consistently held that DNA testing cannot be ordered as a matter of course and must be subject to stringent safeguards to protect the dignity of individuals and the legitimacy of children born during the wedlock. The power to direct such tests must be exercised with utmost circumspection and only when the interests of justice imperatively demand such an intrusive procedure. Courts must remain vigilant against fishing inquiries masquerading as legitimate requests for scientific evidence, ensuring the sanctity of family relationships is not compromised by speculative or exploratory investigations.
29) The foundational parameters governing such directions were established in Goutam Kundu (supra) wherein this Court laid down the
following parameters :
“26. From the above discussion it emerges—
(1) that courts in India cannot order blood test as a
matter of course;
(2) wherever applications are made for such prayers in
order to have roving inquiry, the prayer for blood test
cannot be entertained.
(3) There must be a strong prima facie case in that the
husband must establish non-access in order to dispel
the presumption arising under Section 112 of the
Evidence Act.
(4) The court must carefully examine as to what would
be the consequence of ordering the blood test; whether
it will have the effect of branding a child as a bastard
and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for
analysis.”
30) Following the principles laid down in Goutam Kundu (supra), the approach to ordering DNA tests has been further refined in subsequent
decisions. In Sharda vs. Dharmpal9 it was observed
“81. To sum up, our conclusions are
1. A matrimonial court has the power to order a
person to undergo medical test.2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”