R. Rajendran vs. Kamar Nisha

REPORTABLE
2025 INSC 1304

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
Signature Not Verified
Digitally signed by
VARSHA MENDIRATTA
Date: 2025.11.22
10:26:39 IST
Reason:
lack of progeny. Abdul Latheef requested the appellant to refer his wife,

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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
second 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
24.06.2014 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

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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.

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

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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
9) Pursuant to the remand by the Division Bench, the learned Single
Judge considered the matter afresh, after affording an opportunity to the
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

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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.
10) Aggrieved by the order passed by the learned Single Judge dated
24.04.2017 in W.P. (MD) No.15208/2016, the appellant preferred Writ
Appeal (MD) No.521 of 2017. The Division Bench, vide the impugned
judgment dated 10.05.2017 dismissed the writ appeal, directing the
appellant to appear before the Dean, Government Rajaji Hospital, Madurai
on or before 19.05.2017 for collection of blood samples as ordered by the
learned Single Judge. Hence, this Appeal.

SUBMISSIONS
11) Learned counsel for the appellant submitted that it is settled law that
DNA testing can be granted only in exceptional cases and it cannot be
permitted for mere roving and fishing inquiries, particularly when such
directions may have implications on the right to privacy of the individuals
involved.

12) He further contended that Section 112 of the Indian Evidence Act,
1
1872 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.

1
For short, ‘the Evidence Act’

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13) Learned counsel also placed reliance on Ivan Rathinam vs. Milan
2 3
Joseph ; Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia ; and
4
Banarsi Dass vs. Teeku Dutta (Mrs) and Another .
14) He further submitted that the child has now attained the age of
majority, and therefore, the question arises as to whether she can be
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
reliance placed by the appellant on Goutam Kundu vs. State of West
5 6
Bengal and Another and Dipanwita Roy vs. Ronobroto Roy 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.

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

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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.
7
Lata Nandlal Badwaik and Another 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
8
Another (AADHAAR) vs. Union of India and Another , 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 576
8
(2019) 1 SCC 1

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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

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the legal recognition that the husband is deemed to be the father of the child
born 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 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

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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 non-
communication.
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 DNA
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

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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 :

approach to ordering DNA tests has been further refined in subsequent
9
decisions. In Sharda vs. Dharmpal it was observed:

9
(2003) 4 SCC 493

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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.”

31) This Court in the case of Bhabani Prasad Jena vs. Convenor
10
Secretary, Orissa State Commission for Women and Another held
thus:

10
(2010) 8 SCC 633

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32) We must now consider whether respondent No.1 has successfully
displaced the presumption of legitimacy under Section 112 of the Evidence
Act by proving non-access, so as to warrant the ordering of a DNA test.

III. REBUTTAL OF PRESUMPTION AND FAILURE TO ESTABLISH NON-
ACCESS

33) In a case where the legitimacy of a child is questioned, the degree of
proof, to rebut the presumption under Section 112 of the Evidence Act, is
11
extremely crucial. In Kamti Devi (Smt.) and Another vs. Poshi Ram this
Court observed as follows :
“ 11. Whether the burden on the husband is as hard as
the prosecution to prove the guilt of the accused in a trial
deserves consideration in the above background. The
standard of proof of prosecution to prove the guilt beyond
any reasonable doubt belongs to criminal jurisprudence
whereas the test of preponderance of probabilities
belongs to civil cases. The reason for insisting on proof
beyond reasonable doubt in criminal cases is to guard
against the innocent being convicted and sent to jail if
not to extreme penalty of death. It would be too hard if
that standard is imported in a civil case for a husband to
prove non-access as the very concept of non-access is
negative in nature. But at the same time the test of
preponderance of probability is too light as that might
expose many children to the peril of being illegitimatized.
If a Court declares that the husband is not the father of
his wife's child, without tracing out its real father the
fallout on the child is ruinous apart from all the ignominy
visiting his mother. The bastardised child, when grows
up would be socially ostracised and can easily fall into
wayward life. Hence, by way of abundant caution and as
a matter of public policy, law cannot afford to allow such
consequence befalling an innocent child on the strength
of a mere tilting of probability. Its corollary is that the
burden of the plaintiff husband should be higher than
the standard of preponderance of probabilities. The
standard of proof in such cases must at least be of a
degree in between the two as to ensure that there was no
possibility of the child being conceived through the
plaintiff husband.”

11
(2001) 5 SCC 311

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34) Thus, it is clear that the standard of proof required to displace the
presumption under Section 112 of the Evidence Act must be higher than
mere preponderance of probabilities, yet need not reach the exacting
criminal standard of proof beyond reasonable doubt. The standard must be
sufficiently rigorous to ensure that there existed no possibility of child being
conceived through the husband. This intermediate threshold serves the twin
objectives of preventing the illegitimization of the child on the strength of
mere assertions or tilting of probabilities, while simultaneously guarding
against weaponization of the statutory presumption to defeat the legitimate
claims. The person seeking to rebut this presumption must, therefore,
adduce strong, cogent and unambiguous evidence establishing non-access,
failing which, the statutory presumption must prevail.
35) In the case at hand, the child was born on 08.03.2007, during the
subsistence of a valid marriage between respondent No.1 and Abdul Latheef,
solemnized in the year 2001. Following the maxim pater est quem nuptiae
demonstrant ( The father is the man whom the marriage indicates) , the
statutory presumption under Section 112 of the Evidence Act operates in
favour of Abdul Latheef being the legitimate father of the child. As observed
earlier, this presumption can be displaced only by proving non-access
between the spouses. It is the case of respondent No.1 that Abdul Latheef
deserted her sometime in 2008-2009, well after the child had attained the
age of approximately one and half years. No material has been placed on
record by respondent No.1 to substantiate her claim of desertion, which
remains a bare assertion unsupported by any evidence. It is also not the

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case of respondent No.1 that Abdul Latheef was suffering from any physical
incapacity or impotency rendering him incapable of procreation nor has any
challenge been raised to the validity of the marriage itself. Further,
respondent No.1 has not indicated any circumstance even remotely,
suggesting that Abdul Latheef was physically absent during the relevant
time when the child could have been conceived.
36) The birth certificate dated 14.07.2009, the school transfer certificate
dated 01.06.2011, and the school admission record dated 09.06.2011 each
record the name of Abdul Latheef as the father of the child. These
documents reflect a consistent acknowledgement of his paternity. At its
highest, respondent No.1’s case is one of simultaneous access, that she had
physical relations with the appellant while still married to Abdul Latheef.
Mere simultaneous access does not negate the husband’s access, nor does it
suffice to displace the statutory presumption under Section 112 of the
Evidence Act.
37) What is most striking, however, is the complete absence of any
specific pleading by respondent No.1 establishing non-access between
herself and Abdul Latheef during the period relevant to the conception of the
child. This omission is not merely procedural but goes to the root of the
matter. The presumption under Section 112 of the Evidence Act operates in
favour of legitimacy, and proof of non-access at the relevant period is the
only mode of rebuttal recognised by law. In absence of specific plea of non-
access, supported by strong and unambiguous evidence, the foundation for
displacing the statutory presumption simply does not exist. The

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presumption, therefore, remains unrebutted, and Abdul Latheef must be
regarded as having had access to respondent No.1 during the relevant
period.
38) This Court must nonetheless consider respondent No.1’s prayer for
DNA testing, with due regard to the interests of all stakeholders. As held in
Bhabani Prasad Jena (supra), when there is an apparent conflict between
the right to privacy and bodily integrity on one hand, and the Court’s duty to
ascertain the truth on the other, judicial discretion must be exercised with
utmost care. Such direction can be issued only after a scrupulous balancing
of interests of all parties and upon due consideration of whether, for a just
decision in the matter, DNA test is eminently necessary.
39) At this juncture, it is apposite to refer to the reliance placed by
respondent No.1 on Nandlal Wasudeo Badwaik (supra) and Dipanwita
Roy (supra) to buttress her claim for a direction of DNA testing. These
decisions, however, are clearly distinguishable on facts and do not advance
the case of respondent No.1.
40) In Nandlal Wasudeo Badwaik (supra), the DNA testing had been
conducted with the consent of all parties, and without objection from the
wife’s counsel. The results indicated that the husband was not the biological
father, and the re-test at the wife’s request yielded the same result. The
challenge based on Section 112 of the Evidence Act was only raised after the
test was conducted and the results were already part of the record. The
question before this Court, therefore, was confined to whether such DNA
test results, obtained pursuant to a prior Court direction, could be admitted

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into evidence to rebut the presumption of legitimacy. This Court held that
where a DNA report is available on record following a Court directed test, it
cannot be disregarded merely because it conflicts with the presumption. The
decision thus dealt with the admissibility of DNA evidence already obtained,
not whether a DNA test may be ordered against an unwilling party at the
first instance.
41) In Dipanwita Roy (supra) , this Court directed a DNA test to be
conducted on the child. However, the direction was not issued for the
purpose of determining the legitimacy of the child. The proceedings were in
the context of a petition for divorce on the ground of adultery. The DNA test
was sought to establish the wife’s infidelity in order to obtain a decree of
divorce. The appellant’s objective was not to prove that the child was
illegitimate, that question arose only incidentally. This Court expressly
observed that while the issue of legitimacy was incidentally involved, the
DNA test would determine solely the question of infidelity, and would not
disturb the presumption under Section 112 of the Evidence Act.
42) In sharp contrast, respondent No.1 in the present case seeks a
direction for DNA testing precisely to dislodge the statutory presumption of
legitimacy that safeguards the child, and to establish the appellant as the
biological father so as to sustain the criminal charges of cheating and
harassment. The decision in Dipanwita Roy (supra) is, therefore,
inapplicable to the facts of the present case.


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IV. THE TWIN BLOCKADES TO DNA TESTING AND THE RIGHT TO
PRIVACY

43) This Court, in Ivan Rathinam (supra) , has elucidated the
circumstances under which DNA testing may be directed, while maintaining
the balance between interests of the parties. It reads thus:

the presumption of legitimacy. The child was born during the subsistence of
a valid marriage and the documents on record consistently record Abdul
Latheef as the father. More crucially, there is no pleading whatsoever by
respondent No.1 alleging non-access between herself and Abdul Latheef
during the period of conception. The existing evidence, therefore, stands
sufficient.
45) At this juncture, this Court has to consider whether directing a DNA
test would serve the best interests of the parties involved or whether it
would occasion undue harm. The balance of interests must account for the
rights and welfare of all the stakeholders—the appellant, the child who has
now attained majority, and respondent No.1 herself. In the present case,
this balance weighs decisively against ordering DNA testing. Such a
direction would constitute a significant intrusion into the privacy and

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dignity of both, the appellant and the child, implicating the fundamental
right to privacy guaranteed under Article 21 of the Constitution of India.
46) The contours of the right to privacy, as an intrinsic facet of Article 21
of the Constitution, were elaborated upon by this Court in K.S.
12
Puttaswamy and Another vs. Union of India and Others :

Forcefully subjecting an individual to DNA testing constitutes a grave
intrusion upon privacy and personal liberty. Such an encroachment can be
justified only if it satisfies the threefold test of legality, legitimate State aim,
and proportionality.
47) On behalf of respondent No.1, it is contended that she has voluntarily
relinquished her privacy and is willing to subject herself to DNA testing. It
is further asserted that the DNA testing would remove the child’s stigma of
illegitimacy by establishing the true parentage. These contentions cannot
override the legitimate privacy interests of the other parties involved.
Respondent No.1 is not the sole party whose rights are implicated by the
proposed DNA test. The appellant and the child, who has now attained

12
(2017) 10 SCC 1 (Privacy-9J.)

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majority, possess independent and equally inviolable rights to privacy and
dignity. Respondent No.1’s willingness to waive her own privacy does not
extend to waiving the privacy of others. The appellant has consistently
refused to submit to DNA testing, a refusal that is protected by the
principles articulated in Goutam Kundu (supra).
48) Furthermore, the assertion that the child is living as illegitimate is
legally untenable. In the eyes of the law, the child is the legitimate offspring
of Abdul Latheef through respondent No.1, as the statutory presumption
under Section 112 of the Evidence Act remains unrebutted. The legal status
of the child cannot be altered by mere assertions or by subjective perception
of respondent No.1. Turning to the requirements enunciated in K.S.
Puttaswamy (Privacy-9J.) (supra), we find that the proposed DNA test fails
to satisfy the constitutional requisites. There exists no legitimate aim that
necessitates such an intrusive procedure, since the criminal allegations of
cheating and harassment can be investigated and adjudicated on the
strength of other evidence, without delving into the question of biological
paternity. The test of proportionality is also manifestly not met; the invasion
of privacy and dignity of the appellant and the child far outweigh any
conceivable investigative benefit.
49) In view of the foregoing discussion, this Court is of the opinion that
neither the element of eminent need, contemplated in Bhabani Prasad
Jena (supra), nor the positive finding on the balance of interests as
articulated in Ivan Rathinam (supra) , can be said to have been satisfied in
the facts of the present case.

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V. ADVERSE INFERENCE

50) Further, this Court deems it necessary to address the contention
advanced by respondent No.1 that an adverse inference ought to be drawn
against the appellant under Section 114(g) and (h) of the Evidence Act, on
account of his refusal to undergo DNA testing. This contention, however, is
fundamentally misconceived. Without first displacing the statutory
presumption of legitimacy under Section 112 of the Evidence Act by leading
positive and cogent evidence of non-access, respondent No.1 cannot seek
refuge in the drawing of an adverse inference against the appellant under
Section 114 of the Evidence Act. Unless the presumption under Section 112
is first rebutted, no occasion arises for directing a DNA test. Conversely,
where the prerequisites for ordering such a test are not satisfied, the
question of drawing any adverse inference from the appellant’s refusal to
undergo it does not arise at all. A similar issue arose for consideration
before this Court in Aparna Ajinkya Firodia (supra) wherein
V. Ramasubramanian, J. in a concurring opinion observed as under:
“26. There is another fallacy in the argument of the
respondent. It is the contention of the respondent that he is
seeking an adverse inference to be drawn only as against the
wife under Section 114(h), upon the refusal of the wife to
subject the child to DNA test. But the stage at which the wife
may refuse to subject the child to DNA, would arise only after
the Court comes to the conclusion that a DNA test should be
ordered. To put in simple terms, there are three stages in the
process, namely , (i) consideration by the Court, of the question
whether to order DNA test or not; (ii) passing an order directing
DNA test, after such consideration; and (iii) the decision of the
wife to comply or not, with the order so passed. The respondent
should first cross the outer fence namely whether a DNA test
can be ordered or not. It is only after he convinces the Court to
order DNA test and successfully secures an order that he can
move to the inner fence, regarding the willingness of the wife to
abide by the order. It is only at that stage that the respondent
can, if at all, seek refuge under Section 114(h).

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27. But today, we are actually at the outer fence in this case,
adjudicating as to whether DNA test can be ordered at all.
Therefore, the respondent cannot jump to the inner fence by-
passing the outer fence.”

As it is abundantly clear from the foregoing, and the exposition in Aparna
Ajinkya Firodia (supra), no occasion arises to draw an adverse inference at
the stage of considering whether a DNA test ought to be directed.

51) Beyond the legal framework, it is also imperative to recognise the
ethical and psychological dimensions of directing DNA testing. The process
though scientific, is not without profound ethical and emotional
implications. The act of extracting and analysing one’s genetic material
intrudes into the innermost sphere of personal identity, autonomy, and
privacy. It can have lasting emotional and social ramifications not only for
children but also for adults, as such testing often brings to surface intimate
aspects of familial and personal relationships. In the present case, it must
be borne in mind that the child has now attained majority. At the time
when the FIR was registered and the direction for DNA profiling was issued
by the High Court, the child was still a minor. In such circumstances, the
best interests of the child ought to have been a paramount consideration
before any intrusive forensic procedure was contemplated. Judicial and
ethical prudence both require that autonomy, dignity and emotional well-
being of the individual, especially of a minor, be safeguarded. A direction for
DNA testing without considering the ramifications causes risks inflicting an
irreversible psychological and social harm.


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VI. PATERNITY AS A COLLATERAL FACTOR TO CRIMINAL CHARGES

52) The significance of safeguarding individual autonomy, particularly of
children, in the context of DNA testing, was considered by this Court in
13
Inayath Ali and Another vs. State of Telangana and Another . In this
case, it was examined whether a Court could direct DNA testing of two
minor children to facilitate the proof of offences under Sections 498A, 323,
354, 506 and 509 of the Indian Penal Code, 1860. The dispute primarily
concerned dowry-related offences, and the paternity of the children was not
directly in issue. The complainant sought DNA testing to establish that the
children were born out of a forced relationship with her brother-in-law.
Rejecting this plea, this Court held as follows:

13
(2024) 7 SCC 822


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“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.”

10. In our opinion, the trial Court as also the Revisional Court
had completely ignored the said factor and proceeded as if the
children were material objects who could be sent for forensic
analysis. The other factor, in our opinion, which was ignored
by the said two Courts is that the paternity of the children was
not in question in the subject proceeding.

11. The substance of the complaint was not related to paternity
of the children of Respondent 2 but the question was whether
the offences under the aforesaid provisions of the 1860 Code
were committed against her or not. The paternity of the two
daughters of Respondent 2 is a collateral factor to the
allegations on which the criminal case is otherwise founded.
On the basis of the available materials, in our opinion, the case
out of which this proceeding arises could be decided without
considering the DNA test report. This was the reasoning which
was considered by the coordinate Bench in Ashok
Kumar [ Ashok Kumar v. Raj Gupta , (2022) 1 SCC 20 : (2022) 1
SCC (Civ) 303] , though that was a civil suit. Merely because
something is permissible under the law cannot be directed as a
matter of course to be performed particularly when a direction
to that effect would be invasive to the physical autonomy of a
person. The consequence thereof would not be confined to the
question as to whether such an order would result in
testimonial compulsion, but encompasses right to privacy as
well. Such direction would violate the privacy right of the
persons subjected to such tests and could be prejudicial to the
future of the two children who were also sought to be brought
within the ambit of the trial Court's direction.”


53) In the case at hand, the paternity of the child is collateral to the
primary allegations of cheating and harassment. The FIR itself reveals that
the gravamen of the allegations bears no nexus to the paternity of the child.
The child is neither a party to the proceedings nor is the child’s status
required to be ascertained to determine the commission of the offences
alleged. Directing DNA testing in such circumstances would thus be wholly

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extraneous to the scope of the investigation and disproportionate to the
object sought to be achieved.
54) A direction for DNA testing must have a direct and demonstrable
nexus with the offences under investigation. In the absence of such nexus,
compelling a person to undergo DNA profiling, amounts to unwarranted
intrusion into bodily autonomy and privacy, contrary to the safeguards
implicit in Articles 20(3) and 21 of Constitution of India.
55) Having regard to the above legal position, reliance placed by the High
Court on Sections 53 and 53A of the Code of Criminal Procedure, 1973
appears to be misplaced. In the present case, the learned Single Judge of
the High Court in the order dated 24.04.2017, invoked these provisions to
justify the direction for DNA testing, observing that there was an eminent
need to ascertain the paternity of the child in order to unearth the truth.
The Division Bench, in the impugned judgment, while affirming the order of
the learned Single Judge, did not independently analyse their scope and
applicability. The said provisions are reproduced for ready reference:
“ 53. Examination of accused by medical practitioner at the
request of police officer. —(1) When a person is arrested on a
charge of committing an offence of such a nature and alleged to
have been committed under such circumstances that there are
reasonable grounds for believing that an examination of his
person will afford evidence as to the commission of an offence,
it shall be lawful for a registered medical practitioner, acting at
the request of a police officer not below the rank of sub-
inspector, and for any person acting in good faith in his aid
and under his direction, to make such an examination of the
person arrested as is reasonably necessary in order to
ascertain the facts which may afford such evidence, and to use
such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under
this section, the examination shall be made only by, or under
the supervision of, a female registered medical practitioner.


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Explanation .—In this section and in sections 53A and 54,—

(a) “examination” shall include the examination of blood, blood
stains, semen, swabs in case of sexual offences, sputum and
sweat, hair samples and finger nail clippings by the use of
modern and scientific techniques including DNA profiling and
such other tests which the registered medical practitioner
thinks necessary in a particular case;

(b) “registered medical practitioner” means a medical
practitioner who possesses any medical qualification as defined
in clause (h) of section 2 of the Indian Medical Council Act,
1956 (102 of 1956) and whose name has been entered in a
State Medical Register.

53A. Examination of person accused of rape by medical
practitioner. — (1) When a person is arrested on a charge of
committing an offence of rape or an attempt to commit rape
and there are reasonable grounds for believing that an
examination of his person will afford evidence as to the
commission of such offence, it shall be lawful for a registered
medical practitioner employed in a hospital run by the
Government or by a local authority and in the absence of such
a practitioner within the radius of sixteen kilometres from the
place where the offence has been committed, by any other
registered medical practitioner, acting at the request of a police
officer not below the rank of a sub-inspector, and for any
person acting in good faith in his aid and under his direction,
to make such an examination of the arrested person and to use
such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such
examination shall, without delay, examine such person and
prepare a report of his examination giving the following
particulars, namely:—

(i) the name and address of the accused and of the
person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of
the accused for DNA profiling, and

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each
conclusion arrived at.

(4) The exact time of commencement and completion of the
examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay,
forward the report to the investigating officer, who shall
forward it to the Magistrate referred to in section 173 as part of
the documents referred to in clause (a) of sub-section (5) of that
section.”

(emphasis supplied)


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56) These provisions are intended to be invoked in the cases involving
offences where medical examination of the accused, including the collection
of blood, semen, hair samples, or nail clippings, may furnish material
evidence directly bearing upon the commission of the offence. While these
provisions contemplate the use of modern scientific techniques such as DNA
profiling, their application is conditioned upon the existence of a clear and
proximate nexus between the examination sought and the alleged offence.
57) In the present case, no such nexus is discernible. The offences
alleged do not, by their nature, necessitate ascertainment of paternity or any
forensic determination through DNA analysis. Merely because such testing
is legally permissible in certain contexts does not justify its use as a matter
of course.
CONCLUSION
58) In view of the foregoing analysis, we are constrained to hold that the
impugned judgment dated 10.05.2017 cannot be sustained. The statutory
presumption under Section 112 of the Evidence Act remains unrebutted,
and the child continues to be, in the eyes of the law, the legitimate offspring
of Abdul Latheef. Section 112 embodies a legislative policy of profound
significance, it stands as a bulwark against the casual illegitimization of
children on the strength of unsubstantiated allegations or mere suspicion.
The presumption it creates is not a procedural formality to be lightly
displaced but a substantive safeguard intended to protect the dignity, social
legitimacy, and the legal rights of children born within wedlock.

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59) In summation, the direction for DNA testing, as affirmed by the
Division Bench, rests upon the fundamental misapprehension of both
statutory framework and constitutional safeguards. The offences alleged,
falling under Sections 417 and 420 of the Indian Penal Code, 1860 and
Section 4(1) of the Tamil Nadu Women Harassment Act, are neither of
nature nor of a circumstance that warrant recourse to DNA analysis. The
High Court’s invocation of Sections 53 and 53A of the Code of Criminal
Procedure, 1973, rests on a misconstruction of their contextual ambit; these
provisions contemplate medical examination only where such an
examination may directly yield evidence relating to commission of the
alleged offence. Absent that nexus, compulsion of a DNA test transforms a
lawful investigative power into an intrusive measure devoid of necessity,
trenching upon the individual’s bodily autonomy, privacy. Scientific
procedures, however advanced, cannot be employed as instruments of
speculation; they must be anchored in demonstrable relevance to the charge
and justified by compelling investigative need.
60) Accordingly, the impugned judgment dated 10.05.2017 passed by the
High Court in Writ Appeal (MD) No.521 of 2017 is set aside.
61) The Appeal is, accordingly, allowed.

…………………..........................J.
(PRASHANT KUMAR MISHRA)

.………………............................J.
(VIPUL M. PANCHOLI)
NEW DELHI;
NOVEMBER 10, 2025.

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