Full Judgment Text
2026 INSC 399
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO OF 2026
(Arising out of Special Leave Petition (Crl.) No.15256 of 2023)
NIKHAT PARVEEN @
KHUSBOO KHATOON … APPELLANT(S)
VERSUS
RAFIQUE@SHILLU … RESPONDENT(S)
J U D G M E N T
SANJAY KAROL J.
Leave Granted.
2. In this appeal, a mother (the appellant) challenges the
finding of the High Court of Delhi at New Delhi, returned in
Signature Not Verified
Digitally signed by
SOURAV PAL
Date: 2026.04.21
17:18:12 IST
Reason:
th
judgment and order dated 17 October 2023 passed in CRLMC
1
No.3944 of 2019 regarding her daughter not being entitled to
maintenance to be paid by the respondent (alleged father) as
returned by Metropolitan Magistrate-03 (Mahila Court), South
st 1
East District, New Delhi, by order dated 1 December 2017 and
as affirmed by the District and Sessions Judge, South East, Saket
th 2
Court, New Delhi by order dated 20 March 2019 .
3. The facts in brief are that the appellant was employed as
domestic help in the residence of the respondent for a period of
three years wherein, as can be understood from the record of the
Courts below, the latter established sexual relation with her on
the pretext of marriage. The parties to this lis eventually did get
nd
married on 2 March 2016. A child was born to the appellant on
st
1 April 2016. Matrimonial relations soured fairly quickly
leading to the institution of a complaint under Section 12 of the
3 th
Protection of Women from Domestic Violence Act, 2005 on 14
July 2016 seeking interim maintenance to the tune of Rs.25000/-
per month; protection order for the appellant and her minor child
against the respondent and his family members; an order to
restore the custody of stridhan articles to the appellant. In
response to the said application, the respondent prayed for a
direction to conduct a DNA test to establish paternity of the child
1
‘Trial Court’
2
‘First Appellate Court’
3
‘DV Act’
2
in question along with denying all allegations of domestic
violence as baseless.
4. It appears from the record that the Trial Court accepted the
prayer of the respondent and directed for a DNA test to be
th
conducted. The report thereof is dated 8 May 2017 and records
that the respondent is not the biological father of the appellant’s
child. On this basis, along with the fact that she had apparently
concealed her source of income, the Trial Court rejected the
application for interim maintenance. The said order was
appealed. The First Appellate Court in its judgment records that
the prayer for maintenance of the child is no longer pressed. On
the aspect of concealment too, the Court agreed with the Trial
Court and as such the appeal was dismissed.
5. The High Court in terms of the impugned order elaborately
discussed the position in law in so far as the presumption in
paternity is concerned, under Section 112 of the Indian Evidence
4
Act, 1872 which, we may record, is the main point of challenge
raised before this Court as well. Having done so, it was observed
that the protection of this Section would have been available to
the appellant only if the DNA test (which has attained finality),
had not been conducted since the intent of the Section is to grant
4
‘IEA’
3
the presumption of legitimacy to every child. Since the DNA
report is on record, the Court while also noting earlier that the
question of validity of the marriage inter-se the parties, is in
question, refused to grant maintenance to the child. Qua the
appellant it was held that the Trial Court made an error in denying
interim maintenance and as such, the matter was remanded to the
Trial Court for consideration afresh.
6. As already noted supra the main ground of challenge
before us is Section 112 of the IEA. Let us proceed to examine
the same. The same is reproduced as below along with its current
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iteration under the Bharatiya Sakshya Adhiniyam, 2023 .
IEA
“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.”
Sakshya Adhiniyam, 2023
“116. Birth during marriage, conclusive proof of
legitimacy .—The fact that any person was born during the
continuance of a valid marriage between his mother and any
man, or within two hundred and eighty days after its
dissolution, the mother remaining unmarried, shall be
conclusive proof that he is the legitimate child of that man,
unless it can be shown that the parties to the marriage had no
access to each other at any time when he could have been
begotten.”
5
‘BSA’
4
7. At the outset, it is observed that both the above extracted
provisions are exactly the same. The legislative intent is clear.
Despite technological advancements by leaps and bounds, this
presumption has been retained to save any child from the stigma
of illegitimacy. Before proceeding further however, it is
important to take note of the evolution of judicial opinion on this
presumption.
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7.1 In Dukhtar Jahan v. Mohd. Farooq , it was observed:
12. …Section 112 lays down that if a 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 and the
mother remains unmarried, it shall be taken as
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. This rule of law
based on the dictates of justice has always made the
courts incline towards upholding the legitimacy of a
child unless the facts are so compulsive and
clinching as to necessarily warrant a finding that the
child could not at all have been begotten to the father
and as such a legitimation of the child would result
in rank injustice to the father. Courts have always
desisted from lightly or hastily rendering a verdict
and that too, on the basis of slender materials, which
will have the effect of branding a child as a bastard
and its mother an unchaste woman.
(emphasis supplied)
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7.2 Goutam Kundu v. State of W.B. encapsulated the position
after considering earlier decisions of this Court as follows:
6
(1987) 1 SCC 624
7
(1993) 3 SCC 418
5
“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.”
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7.3 In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik ,
this Court held -
“17. We may remember that Section 112 of the
Evidence Act was enacted at a time when the
modern scientific advancement and DNA test were
not even in contemplation of the legislature. The
result of DNA test is said to be scientifically
accurate. Although Section 112 raises a presumption
of conclusive proof on satisfaction of the conditions
enumerated therein but the same is rebuttable. The
presumption may afford legitimate means of
arriving at an affirmative legal conclusion. While the
truth or fact is known, in our opinion, there is no
need or room for any presumption. Where there is
evidence to the contrary, the presumption is
rebuttable and must yield to proof. The interest of
justice is best served by ascertaining the truth and the
court should be furnished with the best available
science and may not be left to bank upon
presumptions, unless science has no answer to the
facts in issue. In our opinion, when there is a conflict
between a conclusive proof envisaged under law and
a proof based on scientific advancement accepted by
8
(2014) 2 SCC 576 :
6
the world community to be correct, the latter must
prevail over the former.
18. We must understand the distinction between a
legal fiction and the presumption of a fact. Legal
fiction assumes existence of a fact which may not
really exist. However, a presumption of a fact
depends on satisfaction of certain circumstances.
Those circumstances logically would lead to the fact
sought to be presumed. Section 112 of the Evidence
Act does not create a legal fiction but provides for
presumption.”
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7.4 In Dipanwita Roy v. Ronobroto Roy the Court observed
that:
“16. It is borne from the decisions rendered by this
Court in Bhabani Prasad Jena [ Bhabani Prasad
Jena v. Orissa State Commission for Women , (2010)
8 SCC 633 : (2010) 3 SCC (Civ) 501 : (2010) 3 SCC
(Cri) 1053] and Nandlal Wasudeo
Badwaik [ Nandlal Wasudeo Badwaik v. Lata
Nandlal Badwaik , (2014) 2 SCC 576 : (2014) 2 SCC
(Civ) 145 : (2014) 4 SCC (Cri) 65] that depending
on the facts and circumstances of the case, it would
be permissible for a court to direct the holding of a
DNA examination to determine the veracity of the
allegation(s) which constitute one of the grounds, on
which the party concerned would either succeed or
lose. There can be no dispute, that if the direction to
hold such a test can be avoided, it should be so
avoided. The reason, as already recorded in various
judgments by this Court, is that the legitimacy of a
child should not be put to peril.
17. The question that has to be answered in this case
is in respect of the alleged infidelity of the appellant
wife. The respondent husband has made clear and
categorical assertions in the petition filed by him
under Section 13 of the Hindu Marriage Act,
alleging infidelity. He has gone to the extent of
9
(2015) 1 SCC 365
7
naming the person who was the father of the male
child born to the appellant wife. It is in the process
of substantiating his allegation of infidelity that the
respondent husband had made an application before
the Family Court for conducting a DNA test which
would establish whether or not he had fathered the
male child born to the appellant wife. The
respondent feels that it is only possible for him to
substantiate the allegations levelled by him (of the
appellant wife's infidelity) through a DNA test. We
agree with him. In our view, but for the DNA test, it
would be impossible for the respondent husband to
establish and confirm the assertions made in the
pleadings. We are therefore satisfied that the
direction issued by the High Court, as has been
extracted hereinabove, was fully justified. DNA
testing is the most legitimate and scientifically
perfect means, which the husband could use, to
establish his assertion of infidelity. This should
simultaneously be taken as the most authentic,
rightful and correct means also with the wife, for her
to rebut the assertions made by the respondent
husband, and to establish that she had not been
unfaithful, adulterous or disloyal. If the appellant
wife is right, she shall be proved to be so.”
7.5 Nagarathna J., in Aparna Ajinkya Firodia v. Ajinkya Arun
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Firodia held:
“
25. Section 112 was enacted at a time when modern
scientific tests such as DNA tests, as well as
ribonucleic acid tests (“RNA tests” for short), were
not in contemplation of the legislature. However,
even the result of a genuine DNA test cannot escape
from the conclusiveness of the presumption under
Section 112 of the Evidence Act. If a husband and
wife were living together during the time of
conception but the DNA test reveals that the child
was not born to the husband, the conclusiveness in
10
(2024) 7 SCC 773
8
law would remain irrebuttable. What would be
proved, is adultery on the part of the wife, however,
the legitimacy of the child would still be conclusive
in law. In other words, the conclusive presumption
of paternity of a child born during the subsistence of
a valid marriage is that the child is that of the
husband and it cannot be rebutted by a mere DNA
test report. What is necessary to rebut is the proof of
non-access at the time when the child could have
been begotten, that is, at the time of its conception
vide Kamti Devi v. Poshi Ram [ Kamti Devi v. Poshi
Ram , (2001) 5 SCC 311 : 2001 SCC (Cri) 892] .
…
62. Further, questions surrounding paternity have a
significant impact on the identity of a child.
Routinely ordering DNA tests, particularly in cases
where the issue of paternity is merely incidental to
the controversy at hand, could, in some cases even
contribute to a child suffering an identity crisis. It is
also necessary to take into account that some
children, although born during the subsistence of a
marriage and on the desire and consent of the
married couple to beget a child, may have been
conceived through processes involving sperm
donation, such as intrauterine insemination (IUI), in-
vitro fertilisation (IVF). In such cases, a DNA test of
the child, could lead to misleading results. The
results may also cause a child to develop a sense of
mistrust towards the parents, and frustration owing
to the inability to search for their biological fathers.
Further, a child's quest to locate its biological father
may compete with the right to anonymity of the
sperm donor. Having regard to such factors, a parent
may, in the best interests of the child, choose not to
subject a child to a DNA test. It is also, antithetical
to the fundamentals of the right to privacy to require
a person to disclose, in the course of proceedings in
rem , the medical procedures resorted to in order to
conceive.”
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7.6 In Ivan Rathinam v. Milan Joseph Surya Kant J, (as the
Chief Justice of India presently, then was) writing for the Court
observed:
“ 35. In the peculiar circumstances of this case, this
Court must undertake an exercise to ‘balance the
interests’ of the parties involved and decide whether
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there is an ‘eminent need’ for a DNA test. This
pertains not simply to the interests of the child, i.e.
the Respondent, but also to the interests of the
Appellant.
36. On one hand, courts must protect the parties'
rights to privacy and dignity by evaluating whether
the social stigma from one of them being declared
‘illegitimate’ would cause them disproportionate
harm. On the other hand, courts must assess the
child's legitimate interest in knowing his biological
father and whether there is an eminent need for a
DNA test.
…
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.”
8 . In Goutam Kundu ( supra ) primacy is clearly given to the
presumption under Section 112 of IEA . Subsequently, Badwaik
(supra) recognises the superiority of a conclusion reached by way
11
2025 SCC OnLine SC 175
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of a DNA report versus a presumption in law. Then, Aparna
Ajinkya Firodia (supra) held that even on the basis of a DNA
report the presumption would not be dislodged in absence of
proof of non-access. This has been done in recognition of and to
uphold the child’s right to privacy. The most recent judgment in
Rathinam (supra) somewhat softens the near absolutist position
in Aparna Ajinkya Firodia (supra) by calling for a balancing of
interest-on one end the harm from the possible stamp of
illegitimacy and on the other, the interest in knowing the
biological father.
The common thread that has run through all these
judgments is a well-placed hesitation to order or to give an
imprimatur to orders directing DNA test to be conducted. We
entirely agree with this position. The court in Rathinam also
sounded caution in the following terms:
“ 43. That apart, the courts must also remain abreast
with the effects such a probe would have on other
relevant stakeholders, especially women. Casting
aspersions on a married woman's fidelity would ruin
her reputation, status, and dignity; such that she
would be castigated in society. Though in this case,
the Respondent's mother is actively associated in
propagating this vexatious litigation, one can only
imagine the repercussions in other cases where a
child, in utter disregard to the sentiments and self-
respect of their mother, initiates proceedings seeking
a declaration of paternity? The conferment of such a
right can lead to its potential misuse against
vulnerable women. They would be put to trial in a
court of law and the court of public opinion, causing
them significant mental distress, among other issues.
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It is in this sphere that their right to dignity and
privacy deserve special consideration. ”
9. It has to be noted that the present case is distinguishable
from the prevailing position in Aparna Ajinkya Firodia (supra)
since in that case the question before the Court was whether
conducting a DNA test was in the best interest of the child or not.
In this case the DNA test has been conducted, the appellant
consented to the same and has, not even once disputed the
conclusion thereof. It has, in other words attained finality. As
such, the position in Badwaik (supra) would cover this case. In
the aforesaid case, Badwaik was discussed as follows:
“44. Further, in Nandlal Wasudeo
Badwaik [ Nandlal Wasudeo Badwaik v. Lata
Nandlal Badwaik , (2014) 2 SCC 576 : (2014) 2 SCC
(Civ) 145 : (2014) 4 SCC (Cri) 65] , 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 Court relied on the
DNA test report and held that the appellant husband
would not be liable to pay maintenance. The said
12
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. …”
10. In view of the above discussion and particular the position
in Badwaik, we are of the considered view that no error could be
pointed out by the appellant in the High Court’s decision denying
the grant of maintenance to her daughter. The appeal is bereft of
merit and, therefore, dismissed.
11. This Court expresses concern about the child whose
dispute of parentage had made its way up to us. Even though the
High Court has correctly remanded the matter of the appellant’s
maintenance to be decided afresh by the Trial Court, we
acknowledge that even if a revised amount is awarded as per law,
the difficulties for the child will persist. As such, in the interest of
wanting to ensure the security and well-being of the child in
question, we direct the Secretary, Women and Child
Development, Government of the NCT of Delhi, to depute a
person of considerable experience to ascertain details of the
residence of the appellant and visit the same to determine the
wellbeing of the child including in terms of education, nutrition,
health, as also the availability of basic material goods required to
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maintain a minimum standard of living. It would be expected that
wherever the said child’s situation is found to be lacking the
Department would step in to take remedial measures.
Pending application(s), if any, shall stand disposed of.
……………………………………………….J.
(SANJAY KAROL)
……………………………………………….J.
(NONGMEIKAPAM KOTISWAR SINGH)
New Delhi;
April 21, 2026
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