Kerala HC refuses DNA test on child over disputed paternity in domestic violence case

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The Kerala High Court has refused to order a DNA test on a minor child in a domestic violence case, holding that a mere allegation disputing paternity cannot override the statutory presumption of legitimacy applicable to a child born during a valid marriage.

Justice Jobin Sebastian, in an order dated September 26, dismissed a criminal miscellaneous case filed by a man challenging the Wadakkanchery Judicial First Class Magistrate Court’s refusal to direct DNA testing of the child. The High Court held that such an examination cannot be ordered routinely unless there is prima facie material showing that the husband did not have access to his wife during the period when the child could have been conceived.

The case arose from proceedings under Section 12 of the Protection of Women from Domestic Violence (PWDV) Act, 2005, initiated by a woman and her minor child seeking maintenance and return of gold ornaments. During the proceedings, the woman’s husband sought a DNA test, claiming that he was not the child's biological father. The Wadakkanchery Magistrate rejected the application on August 23, 2025, following which the husband approached the High Court.

The High Court noted that the petitioner’s claim was that the woman had allegedly agreed during mediation to undergo a DNA test concerning the child's paternity. However, it said, the nature and purpose of proceedings under the Domestic Violence Act had to be kept in view.

“The object of proceedings under Section 12 of the PWDV Act (seeking relief against domestic violence) is not the determination of biological parentage, but the adjudication of allegations of domestic violence and the grant of statutory reliefs flowing therefrom,” the court said.

The court also noted that the marital relationship between the parties was undisputed, and that there was no material before it to establish that the husband did not have access to the woman during the period when the child could have been conceived.

It held that Section 112 of the Indian Evidence Act, 1872, creates a presumption in favour of the legitimacy of a child born during a valid marriage, subject to the statutory exception relating to non-access between the spouses.

The provision, the court said, was intended to protect the legitimacy of children born during a subsisting marriage.

“Section 112 of the Indian Evidence Act embodies a rule of public policy intended to protect the legitimacy of children born during the subsistence of a valid marriage,” it said.

The court held that a DNA examination cannot be sought as a matter of course merely because one parent disputes the child’s paternity.

“Therefore, in the absence of specific pleadings and prima facie material demonstrating non-access between the spouses during the relevant period, a direction for DNA profiling cannot be sought as a matter of course merely on the basis of an allegation disputing paternity,” the court said.

The court clarified that DNA testing could be ordered in appropriate cases where it is found necessary to properly decide the dispute. However, it said the necessary factual and legal foundation must first be established before such an intrusive examination can be directed.

“Unless non-access between the spouses during the relevant period is prima facie established,” the court said, “evidence cannot be permitted for the purpose of disproving the paternity of a child born during the subsistence of the marriage.”

‘Mediation agreement cannot override law’

The petitioner had also relied on the alleged understanding reached during mediation, arguing that the parties had agreed to undergo DNA testing.

The High Court rejected the contention that such an agreement, by itself, could require a court to order a DNA examination.

“A consensual understanding reached during mediation cannot, by itself, compel a court to order a DNA examination unless the court independently finds that such an examination is legally permissible, necessary, and justified in the facts and circumstances of the case,” the court said.