Two daughters, one DNA test, and a Supreme Court reversal.

Two daughters, one DNA test, and a Supreme Court reversal

Inayath Ali and his brother-in-law were on trial in a Sessions Court in Hyderabad. The charges were serious: dowry harassment, physical assault, outraging the modesty of the complainant — Inayath Ali’s wife. But then the complainant moved an application that changed the entire trajectory of the case. She wanted a DNA test to prove that her two minor daughters were fathered not by her husband, but by the brother-in-law. The Trial Court allowed it. The High Court upheld it. The Supreme Court of India, on 15 September 2022, reversed both orders in Criminal Appeal No. 1569/2022. At stake: the children’s legitimacy, their right to privacy, and the limits of what a criminal court can order as a matter of course.

What the complainant alleged

The FIR was lodged against Inayath Ali and his brother-in-law under Sections 498A, 323, 354, 506 and 509 of the Indian Penal Code, 1860. The complainant alleged dowry harassment, physical violence, and that the brother-in-law had outraged her modesty. During the trial, she filed an application under Section 45 of the Indian Evidence Act, 1872, seeking a direction for DNA fingerprint testing. Her case: she had been forced into a physical relationship with the brother-in-law, and the two daughters born during the marriage were not her husband’s children. She wanted the court to order blood samples from herself, the two appellants, and the two minor children.

The Trial Court — the Sessions Court in S.C. No. 70/2012 — allowed the application on 17 October 2014. It directed the DNA test without much analysis. The High Court of Judicature at Hyderabad for Telangana and Andhra Pradesh dismissed the revision petition on 20 February 2017, relying on Sections 53, 53A and 54 of the Code of Criminal Procedure, 1973. The High Court held that the DNA test was permissible, that it did not amount to testimonial compulsion, and that an adverse inference could be drawn if the appellants refused to comply.

The argument that changed everything

Before the Supreme Court, the appellants argued that the paternity of the children was entirely collateral to the criminal charges. The offences under Sections 498A, 323, 354, 506 and 509 IPC did not require proof of who fathered the children. The DNA test, they said, was being used not to prove the charged offences, but to establish a fact that was irrelevant to the prosecution case. Worse, it would cast doubt on the legitimacy of the two minor daughters — children who were not parties to the proceeding and whose rights to inheritance and social standing would be permanently affected.

The Supreme Court agreed. Justice Aniruddha Bose, writing for the Bench that also included Justice Vikram Nath, held that the DNA test direction was disproportionate and unnecessary.

The witness rule the Supreme Court applied

The Court turned to Section 112 of the Indian Evidence Act, 1872. That provision creates a conclusive presumption of legitimacy: a child born during the continuance of a valid marriage is conclusively presumed to be the legitimate child of the husband, unless it can be shown that the parties had no access to each other at the time of conception. The Court noted that the DNA test direction, if implemented, would directly contradict this presumption. It would raise a doubt about the children’s legitimacy — a doubt that the law itself says should not be raised lightly.

But the Court did not stop at Section 112. It applied the proportionality test from Ashok Kumar v. Raj Gupta and Ors. (2022) 1 SCC 20. In that case, the Supreme Court had held that DNA fingerprint testing must be used sparingly. Courts must assess whether the encroachment on privacy and personal autonomy is justified. The test is not whether the DNA test is permissible under law, but whether it is necessary for the just decision of the case. The Court cited K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India (2019) 1 SCC 1 as the foundational authority for the privacy-based proportionality test.

The High Court had relied on Dipanwita Roy v. Ronobroto Roy (2015) 1 SCC 365 to support its order. The Supreme Court noted that the ratio of that case had been examined in Ashok Kumar and was distinguishable. In Dipanwita Roy, the paternity of the child was directly in issue in a matrimonial proceeding. Here, the paternity was collateral to criminal charges that did not require proof of paternity at all.

Why the children’s privacy mattered

The Court observed that the consequence of a DNA test direction is not confined to whether it amounts to testimonial compulsion under Article 20(3) of the Constitution. It encompasses the right to privacy under Article 21 as well. The two minor children were not parties to the proceeding. They had no say in the matter. Yet the direction would require them to undergo blood sample collection — a physical intrusion — and the results could expose them to lifelong stigma and inheritance-related complications. The Court held that such a direction could not be passed as a matter of course.

The Bench also noted that the case was not one where the prosecution could not proceed without the DNA test. The charges under Sections 498A, 323, 354, 506 and 509 IPC could be decided on the basis of other evidence — the complainant’s testimony, medical reports, and other witnesses. The DNA test was not necessary for the just decision of the case. It was, at best, a collateral inquiry that the complainant wanted to pursue.

THE TEST: Before directing a DNA test in a criminal proceeding, the court must ask: is paternity directly in issue? Is the case decidable without it? Does the direction satisfy the proportionality test from Ashok Kumar v. Raj Gupta? If the answer to any of these is no, the direction cannot stand.

What this means for practitioners

This judgment is a significant check on the tendency of trial courts to allow DNA testing applications mechanically. For advocates defending in dowry and cruelty cases, this is a powerful tool. If the prosecution or the complainant seeks a DNA test to prove paternity that is collateral to the charged offences, the defence can now argue that the direction violates the children’s right to privacy and legitimacy under Section 112 of the Evidence Act. The court must apply the proportionality test and cannot rely solely on the permissibility of DNA testing under Sections 53, 53A and 54 CrPC.

For prosecutors and complainants, the lesson is different. If paternity is genuinely in issue — for example, in a matrimonial dispute or a case where the identity of the father is directly relevant to the charge — the application must be carefully drafted to show necessity. A bare allegation that the children were fathered by another man will not suffice. The court must be satisfied that the case cannot be decided without the DNA test.

For founders and CFOs who may find themselves in family or criminal disputes, the takeaway is practical: DNA tests are not automatic. If you are accused in a criminal case and the other side seeks a DNA test on a collateral issue, your lawyer can resist it on grounds of privacy, proportionality, and the conclusive presumption of legitimacy under Section 112 of the Evidence Act.

The bottom line

The Supreme Court allowed the appeal, set aside the High Court’s judgment, and quashed the Trial Court’s order dated 17 October 2014. The DNA test direction was struck down. The criminal trial will proceed without it. The two minor daughters will not be subjected to blood sample collection. Their legitimacy remains conclusively presumed under Section 112 of the Evidence Act. And every trial court in India now has a clear instruction: DNA testing is not a routine tool. It must be used sparingly, proportionately, and only when the fact sought to be proved is directly in issue and the case cannot be decided without it.