In a significant ruling, the Bombay High Court set aside a Family Court order that had directed a DNA test of a minor child to determine paternity, holding that such a direction was legally unsustainable in the absence of a clear plea of non-access or denial of paternity by the father.

The case involved a married couple whose relationship eventually deteriorated, leading to multiple legal proceedings. A child was born during the subsistence of the marriage. Amid the ongoing disputes, the husband made allegations of adultery against the wife. However, at no stage — including in pleadings, notices, or cross-examinations — did he dispute the child’s paternity or assert that he had no access to his wife during the period of conception.

Despite this, the Family Court ordered a DNA test of the child.

Counsel for the petitioner-wife argued that the Family Court's order violated established legal principles and the privacy rights of the child. It was submitted that without any explicit denial of paternity or plea of non-access by the husband, the direction for a DNA test was unwarranted. The petitioner stressed that the rights and dignity of a minor cannot be compromised merely on the basis of suspicions or matrimonial discord.

Justice R.M. Joshi, presiding over the matter, relied heavily on Section 112 of the Indian Evidence Act, which provides a conclusive presumption of legitimacy for a child born during the continuance of a valid marriage, unless non-access is proven.

The Court emphasized:

“Mere allegations of adultery are not enough to rebut the statutory presumption under Section 112. Even a genuine DNA test result cannot override this presumption unless it is shown by strong and cogent evidence that there was no access between the spouses during the period of conception.”

The Court noted that the respondent-husband never denied paternity nor raised a plea of non-access — essential conditions to seek rebuttal of the statutory presumption.

Importantly, the High Court underscored the sensitive nature of the matter involving a minor and noted:

“A child is not in a position to consent to or refuse a DNA test. Where the parents are adversaries in legal proceedings, the Court must act as the guardian of the child's rights.”

Concluding that the Family Court's direction was both factually and legally flawed, the High Court held that ordering a DNA test in the absence of any challenge to paternity violated the child's right to privacy and dignity.

The writ petition was accordingly allowed, the Family Court’s order was quashed, and the application seeking a DNA test was dismissed.