Kerala High Court holds a child's DNA test cannot be ordered routinely without prima facie proof of non-access between spouses
2 October 2026
Justice Jobin Sebastian, in an order dated September 26, 2026, held that a DNA test of a child born during a valid marriage is not to be directed routinely merely because paternity is disputed.
The court was hearing Criminal Miscellaneous Case No. 2332/2026, filed after a Magistrate refused a husband's request for a DNA test.
The wife and her minor child had moved proceedings under the Protection of Women from Domestic Violence Act, 2005, seeking maintenance and the return of gold ornaments.
Section 112 of the Indian Evidence Act, 1872 makes birth during a valid marriage conclusive proof of legitimacy unless it is shown that the spouses had no access when the child could have been conceived.
The court said that without specific pleadings and prima facie material on non-access, a DNA test cannot be ordered, and that the presumption rests on public policy which parties cannot set aside by consent or settlement.
The petition was dismissed and the Magistrate's refusal upheld. The ruling is reported as 2026 LiveLaw (Ker) 542.
In plain words
Non-access Absence of opportunity for marital intercourse — Under Section 112 the presumption of legitimacy falls only if the spouses had no access when the child could have been conceived.
PWDV Act Protection of Women from Domestic Violence Act, 2005 — The law under which the wife sought maintenance and return of her ornaments.