Private DNA showed 0% paternity. The Supreme Court still said no.

Two children, one marriage, and the DNA test the Supreme Court stopped

Aparna Ajinkya Firodia married Ajinkya Arun Firodia in 2005. They had two sons. In 2017, Ajinkya filed for divorce in the Family Court, Pune, alleging his wife had an adulterous relationship. He claimed to have discovered intimate messages between Aparna and another man in September 2016. Then he obtained a private DNA test report. It showed a 0% probability of him being the biological father of the second child.

Ajinkya moved an application — Exhibit 84/B — before the Family Court, seeking a court-directed DNA test of the second child. He wanted to prove adultery. The Family Court allowed it. The Bombay High Court upheld it. The stakes were brutal: a child's legitimacy, a wife's reputation, and the conclusive presumption of paternity under Section 112 of the Indian Evidence Act, 1872. The Supreme Court of India finally asked one question: can a DNA test override what the law calls "conclusive proof"?

What the Family Court ordered

On 9 November 2020, the Family Court, Pune allowed Ajinkya's application. The order directed a DNA test of the second child. It also warned that if Aparna refused to comply, an adverse inference under Illustration (h) to Section 114 of the Evidence Act would be drawn against her.

The Family Court relied on Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC 576, where the Supreme Court had held that where truth is known through DNA, there is no room for presumption. Scientific proof, the Family Court reasoned, could prevail over the conclusive presumption under Section 112.

Aparna moved a writ petition before the High Court of Judicature at Bombay. On 22 November 2021, the High Court dismissed it. The Bench found a strong prima facie case had been established by the husband. It relied on Sharda v. Dharmpal (2003) 4 SCC 493, which held that a matrimonial court has the power to direct medical tests, and that such a direction does not violate Article 21 of the Constitution.

The arguments: two irreconcilable positions

Before the Supreme Court, the learned Counsel for Aparna argued that the direction for a DNA test violated Section 112 of the Evidence Act. That provision declares that a child born during the continuance of a valid marriage is the legitimate child of the husband, unless it can be shown that the parties had no access to each other at any time when the child could have been begotten. The word "access" means conjugal access — the opportunity for sexual intercourse. The learned Counsel submitted that the husband had never pleaded non-access. In fact, the couple lived together. The second child was born during the subsistence of the marriage. Therefore, the conclusive presumption stood. No DNA test could dislodge it.

The learned Counsel also cited Goutam Kundu v. State of West Bengal (1993) 3 SCC 418, which held that a DNA test direction should be passed only after balancing interests, including the child's rights, and only if the test is "eminently needed." Indian law, the Court had said, leans towards legitimacy. Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women (2010) 8 SCC 633 was also pressed: strong prima facie evidence of non-access is needed before directing a DNA test.

On the other side, the learned Counsel for Ajinkya argued that the DNA test was necessary to prove adultery under Section 13(1)(i) of the Hindu Marriage Act, 1955. He relied on Sharda and Dipanwita Roy v. Ronobroto Roy (2015) 1 SCC 365, which held that a DNA test direction is permissible in deserving cases. The High Court had already found a strong prima facie case. The husband had a private DNA report. The test would reveal the truth.

The doctrine that mattered: Section 112 is a fortress

Justice B.V. Nagarathna, writing for the Bench, began with the text of Section 112. It says: "The fact that any person was born during the continuance of a valid marriage…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."

Then she turned to Section 4 of the Evidence Act. It defines "conclusive proof": "When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it."

The Court held that the only route to rebut the presumption under Section 112 is to prove non-access. Not DNA evidence. Not a private lab report. Not even a court-directed genetic test. The conclusive presumption of legitimacy remains irrebuttable where the husband and wife had access to each other during the time of conception.

The Court explained: even if a genuine DNA test reveals that the child was not born to the husband, what would be proved is adultery, not illegitimacy. The child remains legitimate in law. The presumption under Section 112 protects the child's status, not the husband's biological paternity.

This is the critical distinction. The Court in Kamti Devi v. Poshi Ram (2001) 5 SCC 311 had already held that the conclusive presumption of paternity cannot be rebutted by a mere DNA test; proof of non-access is required. The Supreme Court followed that precedent.

The Court also addressed Nandlal Wasudeo Badwaik. That case had held that where truth is known through DNA, there is no room for presumption. The Supreme Court now explained that Nandlal must be read in its own context. It did not overrule the settled position that Section 112 can only be rebutted by proof of non-access. Scientific proof, however accurate, cannot escape the conclusiveness of the statutory presumption.

THE PLAY: If you are a husband seeking to rebut the presumption of legitimacy under Section 112, do not ask for a DNA test. Prove non-access. Without that, the child remains legitimate — and the DNA test will only prove adultery, not illegitimacy.

The adverse inference trap

The Family Court had directed that if Aparna refused the DNA test, an adverse inference under Illustration (h) to Section 114 of the Evidence Act would be drawn against her. Section 114 says the Court may presume the existence of certain facts. Illustration (h) states that the Court may presume that evidence which could be and is not produced would be unfavourable to the person who withholds it.

The Supreme Court clarified that this power is discretionary, not mandatory. The Court must exercise discretion having regard to the facts of each case. Where the refusal is based on a valid legal right — such as the protection of the child's legitimacy under Section 112 — no adverse inference should be drawn. The Court cannot use the threat of an adverse inference to compel a party to submit to a DNA test that would violate the conclusive presumption.

This is a crucial safeguard. It prevents the evidentiary tool of adverse inference from being weaponised to bypass the statutory protection of legitimacy.

Why this matters in practice

For advocates, this judgment is a roadmap. If you represent a wife resisting a DNA test, your first argument is Section 112. You must show that the husband has not pleaded or proved non-access. The DNA test is irrelevant. The child's legitimacy is conclusive. The Court cannot order a test to dislodge it.

If you represent a husband, your path is harder. You must plead and prove non-access. That means showing that you and your wife had no opportunity for sexual intercourse during the period of conception. This is a factual inquiry. A private DNA report is not enough. The Court will not allow you to use genetic evidence to bypass the statutory scheme.

For founders and CFOs, the lesson is about legal certainty. The law protects certain statuses — like legitimacy — with conclusive presumptions. No amount of scientific evidence can overturn them unless the statute itself provides an exception. This is not a flaw in the law. It is a deliberate choice to protect children from the consequences of their parents' disputes.

The Supreme Court also made an observation that signals a possible future reform. Section 112 was enacted when modern DNA and RNA tests were not in the contemplation of the legislature. Yet, the Court held, DNA test results cannot escape the conclusiveness of the Section 112 presumption. The obiter suggests that Parliament may need to harmonise the provision with advances in genetic science. But until then, the law stands.

The bottom line

If you are a party in a matrimonial dispute and the other side demands a DNA test to challenge a child's legitimacy, your answer is Section 112 of the Indian Evidence Act. The conclusive presumption of legitimacy can only be rebutted by proof of non-access. A DNA test — even a court-directed one — cannot override it. The child remains legitimate. The test proves adultery, not illegitimacy. And no adverse inference can be drawn against a party who refuses to submit to a test that would violate this statutory protection.