Paternity of child can be decided by DNA test

Question asked on: 01/04/2017

Can DNA testing decide paternity of a child? I want to get paternity check of my child through the court because I think that my wife had a sexual relationship with a man before the marriage. Her paramour is also working in Bangalore, and he used to contact her via email, chat and WhatsApp. I have sufficient evidence to prove that they are in the physical and sexual relationship.
I doubt that my daughter is the child of her paramour. Therefore I want to file a criminal case against him as well as a divorce case against my wife. What is the law towards DNA test?

Advised by: Shivendra Pratap Singh,

Section 112 of the Indian evidence act provides presumption about the paternity of child upon fulfilment of certain conditions. The conditions mentioned in section 112 are necessary for the determination of paternity of a child. These conditions exclude the chance to perform a DNA test for the purpose of determine of paternity.

The issue is relating to the paternity of the child which strikes at the root and creates doubt about his legitimacy. Hence, the law always presumes the legitimacy of a child unless and until disproved by cogent evidence.

You have admitted that she is your legally wedded wife so prima facie the court shall presume that you are the father of the child. Now the “burden of proof” is shifted upon you to prove by sufficient evidence that he is not your child.

When a child is born within 280 days from the date of your marriage, and you had sexual intercourse with his mother, then the conditions mentioned in section 112 become fulfilled, and the court shall presume that he is your child.

Generally, the court does not permit to conduct a DNA test in case child is born during the subsistence of valid marriage. Law does not direct to perform a DNA test to prove paternity unless there is substantial doubt of legitimacy. In Goutam Kundu v. the State of W.B., (1993) 3 SCC 418; the Supreme Court held that:

The DNA test is a useful test to determine the question of disputed paternity. The court can rely upon finding of such test as circumstantial evidence which ultimately excludes a particular individual as a father of the child. Section 112 of the Evidence Act does not create a legal fiction but provides a strong presumption to prove paternity of the child.

You can demand to perform DNA test if you have cogent evidence to show that you had no access to the wife or had no sexual relationship when the child begot or wife has an extramarital affair or living in adultery. Thereafter, the court can direct to conduct a DNA test.

In Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454: Section 112; reproduces the rule of English law that it is undesirable to enquire into the paternity of a child when the mother is a married woman and husband had access to her.

In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576 the supreme court opined that Section 112 of the Evidence Act enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The presumption may afford legitimate means of arriving at an affirmative legal conclusion.

You can approach the court for a DNA test, but you have to prove that there is definite proof which creates doubt about the paternity or legitimacy of the child. You can file a criminal case against that man for the offence of adultery as well as you can present a divorce case on the ground of adultery.

Ask Your Question

Shivendra Pratap Singh

Advocate, Lucknow

Advice: 16931

Consultation: 3367

Convert divorce petition into petition of divorce by mutual consent

I have filed a divorce petition, but we are ready to get a divorce by mutual consent. Can we move afresh petition or court can entertain it as a petition for mutual divorce?Section 13 of the Hindu marriage act mentions some grounds for divorce. The section follows the...

Does Hindu marriage sacrament or contract

Does Hindu marriage sacramental or contract? It is now subject of debate that Hindu marriage became a contract or still sacrament. We are living in a new era which is the result of the industrial revolution, the most significant contribution of the industrial...

Mutual consent of divorce

My  husband compelled me to support his petition of mutual consent of divorce. Because of such compulsion I accepted his offer for one time settlement. he gave 4 lac for it and refused to give any amount for my treatment. He said that 4 lac is given for my treatment...

Residence order under domestic violence act

My husband and my in-laws are very much adamant to throw me out from the matrimonial home. I have some confrontations with my husband and in-laws because they committed extreme cruelty against me. They are very greedy and intolerable towards any resistance. My father...

Guilt theory of divorce

I want to know the guilt theory of divorce. My wife and I are want to take divorce through our free will. There is no dispute between us but we think that our views are different. When I contacted an advocate for divorce on free consent of the parites. But he said...

Enhancement of maintenance already fixed by the court

Whether the enhancement of alimony is possible? I married in the year 2003. My husband was rude and careless towards me. Therefore, I finally decided to leave the matrimonial home. Now, I have been residing with my parents. I started working as a school teacher....

Paternity of child can be decided by DNA test

Can DNA testing decide paternity of a child? I want to get paternity check of my child through the court because I think that my wife had a sexual relationship with a man before the marriage. Her paramour is also working in Bangalore, and he used to contact her via...

Divorce by mutual consent

Mutual consent of divorce under section 13-B of the Hindu Marriage Act. Section 13-B, Hindu Marriage Act: Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to...

Compromise in matrimonial dispute

My wife has filed three cases against my family members in different sections of IPC and me as well as under the Domestic Violence Act. She has filed a divorce case against me in district Ajmer to mount pressure upon me. In the meantime, I have filed a petition for...

Amount of alimony in Hindu law

How does court fix amount of alimony while passing decree of divorce? No fixed formula can be laid for fixing the amount of alimony. Right to alimony is an incident of the status from an estate of matrimony. While considering a claim for interim maintenance, the court...

quick Advice

Get A Quick Advice

Book an appointment for 15 minutes and consult with an expert over the phone within minutes

Talk to Advocate Shivendra

Book a phone consultation for 30 minutes and get solid advice on the phone

Book it Now