MR FILIX MILLER AND FELIX MILLER vs MS. NANDAKUMARI
- Court
- Karnataka High Court
®
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RD
DATED THIS THE 3 DAY OF NOVEMBER, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 11719 OF 2026 (GM-FC)
BETWEEN:
MR. FILIX MILLER AND FELIX MILLER
S/O JOSEPH MILLER
AGED ABOUT 56 YEARS
R/AT NO. B-3, SNEHA APARTMENT,
ST
1 MAIN ROAD, KASTURI NAGAR,
KALYAN NAGAR,
BENGALURU -560 043
…PETITIONER
(BY SRI. RAVINSON M., ADVOCATE)
AND:
MS. NANDAKUMARI
D/O FELIX MILLER (AS CLAIMED)
AGED ABOUT 13 YEARS
REPRESENTED BY HER
NATURAL GUARDIAN
SMT. GOWRI
R/AT NO. 36, CROSS,
NEAR CMG COLLEGE,
PILLANNA GARDEN, OMBR LAYOUT,
BENGALURU -560 043
…RESPONDENT
(BY SRI. MITHUN U., ADVOCATE AND
SMT.SHUBHASRI M.V., ADVOCATE FOR
SMT.USHA REDDY K.P., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
Digitally
signed by
SUVARNA T
Location:
HIGH
COURT OF
KARNATAKA
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
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ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT, ORDER OR DIRECTION QUASHING THE ORDER DATED
18.03.2026 PASSED ON I.A. NO.5 IN CRL. MISC. NO. 63/2025
BY THE COURT OF THE PRINCIPAL JUDGE, FAMILY COURT,
BENGALURU AS PER ANNEXURE-A.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 28.09.2026, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV ORDER
The present writ petition is filed aggrieved by the order
passed on IA No.5 in Crl.Misc.No.63/2025 dated 18.03.2026 by
the Principal Judge, Family Court, Bangalore, the father is
before this Court.
2. The respondent herein had filed Crl.Misc.No.63/2025
seeking maintenance for her child. In that case, IA.No.5 was
filed under Section 45 of the Bharatiya Sakshya Adhiniyam,
2023, praying for directions to conduct a DNA test to determine
the biological relationship between the minor son and the
father. The Family Court allowed the same by the impugned
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order, directing the minor child and the father to provide their
blood samples for a DNA test to determine paternity. Aggrieved
thereby, the father is before this Court.
3. Learned counsel appearing for the father submits that
the impugned order is arbitrary, illegal, and contrary to the
settled principles of law governing the power to direct DNA
testing and is liable to be quashed. It is submitted that the
Family Court failed to appreciate that directing a DNA test is
not a matter of course and can be ordered only when a strong
prima facie case is made out, which is conspicuously absent in
the present case. The petitioner submits that the court erred in
treating an alleged statement in a reply notice as a conclusive
admission without subjecting the same to proof in accordance
with law, thereby committing a grave error apparent on the
face of the record. It is submitted that even assuming, without
admitting, that there was any form of acquaintance or
interaction, the same cannot be equated with proof of
paternity, and the impugned order proceeds on an erroneous
presumption. It is submitted that the Family Court failed to
consider that an identical application seeking DNA testing had
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already been rejected by a competent civil court, that the said
order had attained finality, and that the plaintiff therein has not
chosen to challenge the same before any higher forum. It is
submitted that permitting the very same relief to be sought and
granted in subsequent proceedings on the same set of facts
amounts to a clear abuse of the process of law and is
impermissible in the eye of the law. It is submitted that the
court failed to consider the mother's conduct in initiating
multiple proceedings with inconsistent stands, which clearly
demonstrates mala fide intent. The impugned order permits a
roving and fishing enquiry, which is impermissible in law and
has been consistently deprecated by the Hon'ble Supreme
Court. Learned counsel had relied on the judgments of the
Apex Court in the case of Ashok Kumar Vs. Raj Gupta &
1
others . He relied on para Nos.11.1, 13, 14, 16 and 17 which
reads thus:
“11.1 In circumstances where other evidence is
available to prove or dispute the relationship, the
court should ordinarily refrain from ordering blood
tests. This is 3(2015) 1 SCC 365 because such tests
impinge upon the right of privacy of an individual
and could also have major societal repercussions.
1
( 2022) 1 SCC 20
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Indian law leans towards legitimacy and frowns
upon bastardy. The presumption in law of legitimacy
of a child cannot be lightly repelled. This Court, in
Kamti Devi v. Poshi Ram4, while determining the
question of standard of proof required to displace
the presumption in favor of paternity of child born
during subsistence of valid marriage held:
“10. We may remember that Section 112 of the
Evidence Act was enacted at a time when the
modern scientific advancements with
deoxyribonucleic acid (DNA) as well as ribonucleic
acid (RNA) tests were not even in contemplation of
the legislature. The result of a genuine DNA test is
said to be scientifically accurate. But even that is
not enough to escape from the conclusiveness of
Section 112 of the Act e.g. if a husband and wife
were living together during the time of conception
but the DNA test revealed that the child was not
born to the husband, the conclusiveness in law
would remain irrebuttable. This may look hard from
the point of view of the husband who would be
compelled to bear the fatherhood of a child of which
he may be innocent. But even in such a case the law
leans in favor of the innocent child from being
bastardised if his mother and her spouse were living
together during the time of conception. Hence the
question regarding the degree of proof of non-
access for rebutting the conclusiveness must be 4
2001(5) SCC 311 answered in the light of what is
meant by access or non-access as delineated
above.”
13. DNA is unique to an individual (barring twins)
and can be used to identify a person’s identity, trace
familial linkages or even reveal sensitive health
information. Whether a person can be compelled to
provide a sample for DNA in such matters can also
be answered considering the test of proportionality
laid down in the unanimous decision of this Court in
K.S Puttaswamy v. Union of India5, wherein the
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right to privacy has been declared a constitutionally
protected right in India. The Court should therefore
examine the proportionality of the legitimate aims
being pursued, 52019 (1) SCC 1 i.e whether the
same are not arbitrary or discriminatory, whether
they may have an adverse impact on the person and
that they justify the encroachment upon the privacy
and personal autonomy of the person, being
subjected to the DNA Test. It cannot be overlooked
that in the present case, the application to subject
the Plaintiff to a DNA Test is in a declaratory suit
and the plaintiff has already adduced evidence and
is not interested to produce additional evidence
(DNA), to prove his case. It is now the turn of the
defendants to adduce their evidence. At this stage,
they are asking for subjecting the plaintiff to a DNA
test. Questioning the timing of the application the
trial Court dismissed the defendants application and
we feel that it was the correct order.
14. In the yet to be decided suit, the plaintiff has led
evidence through sworn affidavits of the
Respondents, his School Leaving Certificates and his
Domicile Certificate. Significantly, the respondent
No.1, who is one of the 3 siblings (defendants) had
declared in her affidavit that the Plaintiff was raised
as a son by her parents. Therefore, the nature of
further evidence to be adduced by the plaintiff (by
providing DNA sample), need not be ordered by the
Court at the instance of the other side. In such kind
of litigation where the interest will have to be
balanced and the test of eminent need is not
satisfied our considered opinion is that the
protection of the right to privacy of the Plaintiff
should get precedence.
16. The respondent cannot compel the plaintiff to
adduce further evidence in support of the
defendants’ case. In any case, it is the burden on a
litigating party to prove his case adducing evidence
in support of his plea and the court should not
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compel the party to prove his case in the manner,
suggested by the contesting party.
17. The appellant (plaintiff) as noted earlier, has
brought on record the evidence in his support which
in his assessment adequately establishes his case.
His suit will succeed or fall with those evidence,
subject of course to the evidence adduced by the
other side. When the plaintiff is unwilling to subject
himself to the DNA test, forcing him to undergo one
would impinge on his personal liberty and his right
to privacy. Seen from this perspective, the
impugned judgment merits interference and is set
aside. In consequence thereof, the order passed by
the learned Trial Court on 28.11.2017 is restored.
The suit is ordered to proceed accordingly.”
He relied on the judgment of the Apex Court in the case
2
of Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia , para
No.12 (i) to (v), 13 and 15 which reads thus:
“12. Having regard to the aforesaid discussion, the
following principles could be culled out as to the
circumstances under which a DNA test of a minor
child may be directed to be conducted: i. That a DNA
test of a minor child is not to be ordered routinely,
in matrimonial disputes. Proof by way of DNA
profiling is to be directed in matrimonial disputes
involving allegations of infidelity, only in matters
where there is no other mode of proving such
assertions. ii. DNA tests of children born during the
subsistence of a valid marriage may be directed,
only when there is sufficient prima-facie material to
dislodge the presumption under Section 112 of the
Evidence Act. Further, if no plea has been raised as
2
2024 7 SCC 773
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to non-access, in order to rebut the presumption
under Section 112 of the Evidence Act, a DNA test
may not be directed. iii. A Court would not be
justified in mechanically directing a DNA test of a
child, in a case where the paternity of a child is not
directly in issue, but is merely collateral to the
proceeding. iv. Merely because either of the parties
have disputed a factum of paternity, it does not
mean that the Court should direct DNA test or such
other test to resolve the controversy. The parties
should be directed to lead evidence to prove or
disprove the factum of paternity and only if the
Court finds it impossible to draw an inference based
on such evidence, or the controversy in issue cannot
be resolved without DNA test, it may direct DNA test
and not otherwise. In other words, only in
exceptional and deserving cases, where such a test
becomes indispensable to resolve the controversy
the Court can direct such test. v. While directing
DNA tests as a means to prove adultery, the Court is
to be mindful of the consequences thereof on the
children born out of adultery, including inheritance-
related consequences, social stigma, etc.
13. Further, in Nandlal Wasudeo Badwaik, the facts
of the case were that due to non-opposition of the
counsel for the wife, this Court directed that the
serological test be conducted. The report was
brought on record, which stated that the appellant-
husband was not the biological father of the minor
child. At the request of the respondent-wife, a re-
test was ordered, which also revealed the same
result. The plea with regard to the applicability of
section 112 of the Evidence Act was taken only after
the DNA test was conducted on the direction of this
Court and the report was brought on record. This
Court held that when a report of a DNA test
conducted on the direction of a Court, was available
on record and was in conflict with the presumption
of conclusive proof of the legitimacy of the child, the
DNA test report cannot be ignored. Hence, this
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Court relied on the DNA test report and held that the
appellant-husband would not be liable to pay
maintenance. The said case would be of no
assistance to the case of the respondent herein.
This is because, in the said case, this Court was
confronted with a situation in which DNA test
report, in fact, was available and was in conflict
with the presumption of conclusive proof of
legitimacy of the child, under Section 112 of the
Evidence Act. However, in the present case, no DNA
test is available till date, which was conducted on
the direction of a competent Court. Therefore, the
respondent-husband would first need to dislodge
the presumption under Section 112 of the Evidence
Act and thereafter seek a direction to conduct a DNA
test of Master ‘X”.
15. It is trite that the burden is on a litigating party
to prove his case by adducing evidence in support of
his plea. The Court is not to compel one party to the
dispute to assist the other contesting party, vide
Ashok Kumar. Therefore, DNA tests are not to be
directed on a routine basis, merely to enable a party
to prove his case of adultery.”
He has also relied on Bhabani Prasad Jena Vs.
Convenor Secretary, Orissa State Commission for Women
3
and another para No. 13 which reads thus:
“13. In a matter where paternity of a child is in
issue before the court, the use of DNA is an
extremely delicate and sensitive aspect. One view is
that when modern science gives means of
ascertaining the paternity of a child, there should
not be any hesitation to use those means whenever
the occasion requires. The other view is that the
3
2010 8 SCC 633
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court must be reluctant in use of such scientific
advances and tools which result in invasion of right
to privacy of an individual and may not only be
prejudicial to the rights of the parties but may have
devastating effect on the child. Sometimes the
result of such scientific test may bastardise an
innocent child even though his mother and her
spouse were living together during the time of
conception. In our view, when there is apparent
conflict between the right to privacy of a person not
to submit himself forcibly to medical examination
and duty of the court to reach the truth, the court
must exercise its discretion only after balancing the
interests of the parties and on due consideration
whether for a just decision in the matter, DNA is
eminently needed. DNA in a matter relating to
paternity of a child should not be directed by the
court as a matter of course or in a routine manner,
whenever such a request is made. The court has to
consider diverse aspects including presumption
under Section 112 of the Evidence Act; pros and
cons of such order and the test of ‘eminent need’
whether it is not possible for the court to reach the
truth without use of such test.”
Then he also relied on the case of Ivan Rathinam Vs.
4
Milan Joseph , para no.47 and 49 which reads thus:
“47. First and foremost, the courts must, therefore,
consider the existing evidence to assess the
presumption of legitimacy. If that evidence is
insufficient to come to a finding, only then should
the court consider ordering a DNA test. Once the
insufficiency of evidence is established, the court
must consider whether ordering a DNA test is in the
best interests of the parties involved and must
4
2025 INSC 115
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ensure that it does not cause undue harm to the
parties. There are thus, two blockades to ordering a
DNA test: (i) insufficiency of evidence; and (ii) a
positive finding regarding the balance of interests.
49. In Nandlal Wasudeo Badwaik v. Lata Nandlal
Badwaik (supra), all the parties concerned
consented to undergo a DNA test. It was solely on
this basis that the High Court permitted such
testing. The question before this Court was only
whether the results of such a test could be admitted
into evidence to rebut the presumption of
legitimacy. This Court held that since none of the
parties contested the DNA test, the Court had to
proceed with the assumption that the order for it
was validly passed. Thus, the issue before this Court
was solely concerning the admissibility of the
results of the test, not whether a DNA test could be
ordered in the first instance.”
He also relied on Judgment of the Hon’ble Supreme
Court in the case of R. Rajendran Vs. Kamar Nisha and
5
others , para no.28, 38, 40, 43, 44 and 49 which reads thus:
“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 Criminal Appeal
No.1013/2021 Page 11 of 28 such an intrusive
procedure. Courts must remain vigilant against
fishing inquiries masquerading as legitimate
requests for scientific evidence, ensuring the
5
2025 INSC 1304
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sanctity of family relationships is not compromised
by speculative or exploratory investigations.
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.
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
Criminal Appeal No.1013/2021 Page 17 of 28 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.
43) This Court, in Ivan Rathinam (supra), has
elucidated the circumstances under which DNA
testing may be directed, while maintaining the
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balance between interests of the parties. It reads
thus: “47. First and foremost, the courts must,
therefore, consider the existing evidence to assess
the presumption of legitimacy. If that evidence is
insufficient to come to a finding, only then should
the court consider ordering a DNA test. Once the
insufficiency of evidence is established, the court
must consider whether ordering a DNA test is in the
best interests of the parties involved and must
ensure that it does not cause undue harm to the
parties. There are thus, two blockades to ordering a
DNA test : (i) insufficiency of evidence; and (ii) a
positive finding regarding the balance of interests.”
44) In the present case, we find no insufficiency of
evidence to dislodge 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.
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.”
He also relied on the order passed by the Co-ordinate
Bench of this Court in the case of Chalapathi Vs. Sri.
Chandrappa and Ors, arising out of WP No.18607/2022 dated
20.08.2026, para Nos.8,9 and 10 which reads thus:
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“8. It is further to be noticed that the petitioner
himself has relied upon the fact that he was brought
up by his grandparents, namely, Narayanappa and
Beeramma. Even after such an assertion, the fact
that these persons had knowledge of the
circumstances surrounding his birth which would
undoubtedly make them material witnesses to
establish the factual foundation of his claim, the
petitioner has not chosen to examine either
Narayanappa or Beeramma before the Trial Court.
Such material evidence is vital to be proven by the
petitioner when he seeks to displace an existing
presumption of legitimacy by resorting directly to a
DNA test. It is necessary to bear in mind that on the
facts and material available on record, DNA test
cannot be allowed to be conducted as the petitioner
has failed to establish the basic factual foundation
of his claim.
9. An equally important consideration is whether,
there exists an “eminent need” for directing a DNA
examination? The Hon’ble Supreme Court has held
that while considering such a prayer, the Court is
required to balance the interests of the person
asserting a right to know his biological parentage
against the privacy, dignity and familial interests of
the persons who would be subjected to the test. The
expression ‘eminent need’ cannot be understood to
mean that a DNA test would merely be useful or
convenient for determining the biological
relationship. The requirement is of a necessity of
such degree that the controversy cannot fairly and
effectively be adjudicated on the basis of the
evidence otherwise available. As held by the Hon'ble
Supreme Court in IVAN RATHINAM referred supra,
the Court must first examine the existing evidence
and the statutory presumption of legitimacy and
only upon finding such evidence insufficient,
proceed to examine whether the balance of
interests requires the procedure of DNA testing. In
the present case, the petitioner has neither
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established the foundational facts of his claim nor
has rebutted the presumption under Section 112 of
the Act and has also failed to prove why paternity
cannot be adjudicated upon the evidence available
before the Trial Court. The existence of an eminent
need is therefore an essential consideration and not
a mere formality. Therefore, no ‘eminent need’ for
directing a DNA test is made out in the case on
hand. Hence, if the application is allowed on the
material available on record, it would effectively
convert the DNA test into an instrument of
investigation or a fishing enquiry rather than a
measure necessitated in the interests of justice.
10. Taking note of the aforesaid enunciation of law
laid down by the Hon’ble Supreme Court, it is well
settled that a direction for conducting a DNA test
cannot be issued as a matter of course. Such a
direction, having regard to its intrusive nature and
its consequences upon the dignity, privacy and
legitimacy of the parties concerned, can be ordered
only upon the party seeking such an order laying a
prima facie case for the same. The Hon’ble Supreme
Court has reiterated that an application for DNA
testing cannot be permitted to become a means of
conducting a roving or fishing enquiry. A strong
prima facie case along with an ‘eminent need’ must
first be established before the Court can consider
directing such a test.”
Relying on these judgments, it is submitted that the
Court has failed to consider the settled principles of law while
allowing an application under Section 45 of BSA and referring
the petitioner to go for a DNA test.
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4. Learned counsel appearing for the respondent submits
that the order does not suffer from non-application of mind. On
the contrary, the learned Judge exercised judicial discretion
after weighing the pleadings. The admitted sexual relationship,
the written assurances, the sustained conduct of the petitioner
over several years, and the specific pleading of non-access of
the mother's first husband. Once paternity is clearly disputed
and a prima facie foundation is laid, DNA examination is the
most reliable and least valuable method of ascertaining the
truth. It is submitted that the Family Court considered the
cumulative circumstances placed on record including the
petitioner's own admission of a sexual relationship in his reply
dated 25.03.2024, his acknowledgment of and interaction with
the child, his financial contributions, the handwritten
assurances, and his conduct over several years. It is submitted
that the earlier proceedings in OS.No.25550/2024 i.e., a suit
filed for permanent injunction concerning immovable property
wherein paternity was not and could not have been a matter
directly and substantially an issue. An order dated 23.04.2025
rejecting an interlocutory application for appointment of a
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Commissioner for a DNA test is not a decision on a matter in
issue in a former suit and does not operate as res-judicata . The
conduct of the child's mother in other proceedings can neither
defeat nor dilute the independent legal right of the
respondent/child nor the impugned proceedings. He relied on
6
the judgment of Kanthi Devi Vs. Poshi Ram , and Goutam
7
Kundu Vs. State of West Bengal & Anr. . It is submitted
that the Hon'ble Apex Court in case of Nandlal Wasudeo
8
Badwaik Vs. Lata Nandlal Badwaik held that where there is
a conflict between a conclusive presumption of law and
scientific proof accepted by the world community to be correct,
the latter must prevail. This principle has been reaffirmed in
9
case of Dipanwita Roy Vs. Ronobroto Roy and most
recently in Nikhat Parveen @Khusboo Khatoon Vs. Rafique
10
@Shillu , wherein it was held that an undisputed DNA report
must prevail over presumption under the said provision. These
authorities clearly support the collection of DNA evidence to
enable a just and truthful adjudication of the disputed
6
2001 (5) SCC 311
7
( 1993) 3 SCC 418
8
( 2014) 2 SCC 576
9
( 2015) 1 SCC 365
10
2026 INSC 399
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paternity. It is submitted that the judgment in Ivan
Rathinam's case referred supra is clearly distinguishable and
if anything supports the respondent in her case the claim
against the alleged biological father failed for the specific
reason that non-access of the mother's husband was not
proved and the presumption of legitimacy therefore remained
intact. The Supreme Court expressly held that the presumption
yields where non-access is established. In the present case,
unlike in Ivan Rathinam's case referred supra, the husband
has specifically pleaded and placed prima facie material
demonstrating the total abandonment and non-access of the
mother's first husband well prior to conception. The very
determination of non-access and biological paternity is what the
impugned order facilitates. The ratio of Ivan Rathinam's case
referred supra thus reinforces, rather than negatives, the
necessity of the DNA examination directed by the Family Court.
It is submitted that the child's right to identity and maintenance
are very much important. The right of a child to know her
biological parentage and root is an integral facet of her dignity,
identity and personal liberty under Article 21 of the Constitution
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of India and also recognized by Articles 7 and 8 of the United
Nations Convention on the Rights of the Child. It is submitted
that the order passed by the Family Court is a well considered
one and no interference is called for with order impugned.
5. Having heard the learned counsel on either side,
perused the entire material on record. In the light of the
submission, the question that falls for consideration before this
Court is:
“Whether the welfare of the minor child, the
necessity of securing maintenance, and the
father’s admission of a physical relationship with
the mother constitute sufficient grounds to direct
DNA examination. Particularly when a similar
request was rejected earlier and the father
objects to the proposed examination relying on
Article 21 pf the constitution of India?”
The first and foremost thing this court has to take into
consideration is the nature of the proceedings before the trial
court. The mother has approached the court seeking
maintenance for the minor child. Section 125(1)(b) of CrPC
expressly recognizes the entitlement of both legitimate and
illegitimate minor children, unable to maintain themselves, to
claim maintenance from their father, subject to the
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requirements prescribed therein. The corresponding protection
is available under Section 144(1)(b) of the Bharatiya Nagarik
Suraksha Sanhitha, 2023. The law does not distinguish
between children born within marriage and those born outside
marriage for the purpose of recognizing their entitlement to
maintenance under these provisions. The obligation of a father
toward his child does not depend on whether he was married to
the mother. A child cannot be denied financial support merely
because the relationship between the parties did not have the
sanction of marriage. However, recognition of this statutory
principle does not dispense with the necessity of establishing
that the person from whom maintenance is sought is legally
responsible for the child's maintenance. The child's entitlement
and the liability of the person from whom maintenance is
sought are two distinct matters. The former is recognized by
statute; the latter must be determined on the facts and
evidence. In the present case, the petitioner admits that he had
a physical relationship with the mother but denies that he is the
biological father. The admission is relevant but cannot be
treated as conclusive proof of paternity. A relationship between
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two persons does not, by itself, establish that the child born to
the woman was fathered by the man concerned. The court
must therefore determine the disputed relationship on legally
admissible evidence. The petitioner has raised another
objection arising from earlier civil proceedings. According to
him, a similar request for DNA examination was rejected by the
Civil Court, and consequently the mother is precluded from
seeking the same relief in the maintenance proceedings. An
order refusing DNA examination and a judgment finally decided
on paternity do not necessarily have the same legal effect. An
application for DNA examination requires the production of
scientific evidence. The court may decline such an examination
because the evidence already available is sufficient, because
the request is premature, or because the circumstances do not
justify interfering with the privacy of the person concerned.
Rejection of such an application does not invariably amount to
a finding that the alleged biological relationship does not exist.
Where the issue of paternity has been conclusively adjudicated
between the parties and the determination has attained finality,
the principle of res judicata may prevent its reconsideration.
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However, where the earlier order merely declined a particular
mode of proof without determining paternity, the question of
whether a scientific examination is necessary in subsequent
proceedings must be addressed in the context of those
proceedings. In this background, the learned counsel for the
petitioner relied on the judgment of the Apex Court in Ivan
Rathinam's case referred supra assumes significance. In that
case, the child was born during the subsistence of a valid
marriage between the mother and her husband. The husband's
name was recorded as the father in the birth register.
Subsequently, the mother alleged that another person was the
biological father and instituted proceedings seeking a
declaration to that effect. The civil proceedings resulted in a
finding that the statutory presumption of legitimacy under
Section 112 of the Evidence Act had not been displaced. That
finding attained finality. Thereafter, the question of biological
paternity was sought to be reopened in maintenance
proceedings on the premise that legitimacy and biological
paternity were separate issues. The Supreme Court rejected
that approach and held that where the statutory presumption of
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legitimacy operates and the issue has already been conclusively
adjudicated, the determination cannot be circumvented by
initiating another inquiry into biological paternity in
maintenance proceedings. The Court also disapproved of
reopening an issue that had attained finality between the
parties. The distinction between that case and the present
matter must be appreciated. In Ivan Rathinam's case
referred to supra, the question of the child's regularly
recognized parentage had been determined in earlier
proceedings. In the present case, the petitioner relies upon an
earlier rejection of an application for DNA examination. Unless
that order also involved a conclusive determination of
paternity, its effect cannot be equated with the adjudication
considered by the Apex Court. The decision in Ivan
Rathinam's case referred supra has also explained the
significance of Section 112 of the Evidence Act, where a child is
born during subsistence of a valid marriage, the statutory
presumption of legitimacy cannot be displaced merely by
alleging that the mother had a physical relationship with
another man. The relevant inquiry concerns non-access
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between the spouses during the period when the child could
have been conceived. The existence of an additional
relationship does not by itself establish non-access. Whether
that presumption arises in the present case depends upon the
marital status of the mother during the relevant period and the
other fundamental factors required by Section 112 of the
Evidence Act. The trial court must address that question
whenever the pleadings and material discloses circumstances
attracting the provision. The petitioner's admission of a physical
relationship cannot be used to bypass the statutory
presumption that is otherwise applicable. Apart from these
factual considerations, Ivan Rathinam's case , referred supra,
is based on the principle of wider application concerning DNA
examination. The Hon’ble Supreme Court examined the
competing interests involved in compelling a person to undergo
such a test. It emphasized the necessity of protecting privacy
and dignity while recognising that a child may have a legitimate
interest in establishing biological parentage. The Supreme
Court explained that the Court must first consider whether the
existing evidence is sufficient to resolve the controversy. Only
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then the evidence is found insufficient should DNA examination
be considered. Even thereafter, the Court must determine
whether the examination is justified upon balancing the
interests of the person concerned and the consequences of the
proposed intrusions. Thus, the requirement of an eminent need
is an essential condition for directing for DNA examination. The
said principle is consistent with earlier decisions in Bhabani
Prasad Jena case referred supra, in the case of Ashok
Kumar Vs. Raj Gupta & others, Aparna Ajinkya Firodia
case referred supra.
6. The ratio laid down in the above cited Judgments
raises caution against directing scientific examination merely
because it may provide a more convenient or conclusive
method of proof. The Court must first consider the evidence
otherwise available and determine whether a dispute genuinely
requires such examination. In the case of Chaturbhuj
11
Pradhan v. Amar Pradhan & Anr , the Hon’ble Supreme
Court subsequently considered the principles laid down in Ivan
Rathinam's case referred supra while examining a direction
11
2026 INSC 600
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for DNA testing in proceedings where biological paternity was
directly in issue. The Court upheld the examination upon
finding that the existing evidence could not adequately resolve
the controversy and the balance of interest justified the test.
The Court also distinguished earlier findings which did not
amount to a conclusive adjudication of paternity. These
decisions makes it clear that the DNA examination is neither
prohibited in all cases involving disputed paternity nor
permissible merely because paternity is denied. Its necessity
must be established in the circumstances of each case.
7. In the present case, the trial court has relied upon the
welfare of the minor child and the petitioner's admission of a
physical relationship with the mother. These are undoubtedly
relevant considerations. The child has approached the court
seeking maintenance and determination of paternity may be
necessary for deciding whether the petitioner is liable to
maintain the child. The admission also provides a factual
foundation for examining the mother's assertion. Nevertheless,
the welfare of the child, important as it is, cannot be treated as
a substitute for the judicial inquiry required before directing
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DNA examination. The child's need for maintenance establishes
the importance of deciding the claim expeditiously. It does not
necessarily establish that the claim is decided only through
scientific testing. The trial court was required to consider
whether the mother could establish the alleged parental
relationship through the evidence otherwise available. The
circumstances concerning the period of the admitted relation,
the birth of the child, any acknowledgment of parentage and
other relevant evidence would have a bearing upon the inquiry.
Only if such evidence was insufficient to resolve a dispute,
would the necessity of a DNA examination arise.
8. The impugned order does not disclose that the Family
Court undertook this exercise. Its reasoning rests principally
upon the child's welfare, the need for maintenance and the
admission of the physical relationship. While those
considerations establish the relevancy of paternity to the
proceedings, they do not, without an assessment of the
available evidence, establish the imminent need contemplated
in Ivan Rathinam's case referred supra. The objection under
Article 21 of the Constitution of India must also be examined in
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this context. DNA examination involves collection and analysis
of biological material capable of revealing sensitive genetic
information. The petitioner's right to privacy and bodily
autonomy is therefore directly engaged. The fact that he has
accepted the physical relationship does not amount to consent
for a DNA examination or surrender of his constitutional rights.
At the same time, the petitioner cannot claim absolute
immunity from the scientific examination merely by invoking
Article 21 of the Constitution of India. In the case of Sharda
12
Vs. Dharampal , the Hon’ble Supreme Court recognised that
courts may direct medical examination in appropriate
circumstances. Such directions must, however, be founded
upon sufficient material and justified by the requirements of
adjudication. The right to privacy recognised in Justice K.S.
13
Putta Swami (Retd.) Vs. Union of India similarly requires
interference with bodily autonomy and personal information to
satisfy the requirements of legitimacy, necessity and
proportionality. The Court must therefore decide whether the
intrusion is genuinely necessary for adjudicating the
12
2003 4 SCC 493
13
2017 10 SCC 1
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maintenance claim, and whether the same purpose can
reasonably be achieved through less intrusive evidence. The
exercise involves balancing the rights of both individuals rather
than treating either interest as automatically overriding the
other. The trial Court has not addressed the petitioner's
constitutional objection through this balancing exercise. Merely
observing that the welfare of the child is paramount does not
answer whether the proposed examination is necessary and
proportionate. The power to direct DNA examination is available
to the trial Court, but its exercise must satisfy the principle laid
down by the Apex Court. The importance of the issue to be
determined does not dispense with the necessity of examining
whether the proposed means of proof is legally sustainable.
9. In these circumstances, this Court is of the considered
view that the Family Court is justified in recognizing the
relevance of the disputed biological relationship to the
maintenance proceedings, but it failed to undertake the further
inquiry required before directing DNA examination. The reason
assigned in the impugned order does not satisfy the tests of
evidentiary necessity and proportionality explained in Ivan
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Rathinam's case referred supra. Hence, this Court is passing
the following:
ORDER
i. The order dated 18.03.2026 passed in I.A.No.5 in
Crl.Misc.No.63/2025 by the Principal Judge, Family
Court, Bangalore, directing DNA examination, and
the order passed under Section 45 of the BSA are
set aside, and the matter is remanded back to
the Family Court for fresh consideration.
ii. The Family Court shall reconsider the application
after examining the effect of the earlier civil
proceedings, the applicability of the statutory
presumption of legitimacy, if applicable, the
evidence otherwise available to determine
paternity, and the necessity of DNA testing.
iii. If scientific examination is found necessary, the
Family Court shall record reasons showing that the
dispute cannot be adequately resolved by other
evidence and that the proposed intrusion upon
privacy is proportionate to the legitimate object of
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the proceedings. The Family Court shall decide the
application expeditiously, without being influenced
by any observations made by this court.
iv. Pending IAs., if any in the petition shall stand
closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
TS
List No.: 1 Sl No.: 8
*AK