Legitimacy, stigma, privacy drove SC’s paternity jurisprudence for yrs. New order backs child’s identity

Holding that DNA test could be compelled because child's right to know outweighed father's privacy interest, SC has recognised that parentage is not merely a matter of legal status.

Featured image by Shruti Naithani | ThePrint

New Delhi: Upholding an order directing DNA testing to conclusively determine paternity, the Supreme Court Friday ruled that a child’s right to know his biological origins could, in an appropriate case, outweigh an alleged father’s privacy interests.

The judgement is an important step in the Supreme Court’s evolving jurisprudence on deoxyribonucleic acid (DNA) testing and paternity. The apex court has consistently held that DNA tests should not be ordered routinely, but never laid down a conclusive framework governing when they should be permitted. Its reasoning has also shifted over time.

Before the landmark Puttaswamy judgement recognised privacy as a fundamental right, paternity cases were largely driven by concerns about legitimacy and the need to avoid ‘bastardising’ children. Since then, the court has increasingly approached these disputes through the lens of privacy and bodily autonomy.

Friday’s ruling suggests another evolution. While stopping short of recognising a standalone right to know one’s biological origins, the court made clear that in an appropriate case, a child’s interest in discovering the truth about his parentage can outweigh privacy objections.

A bench of Justices Sanjay Karol and N. Kotiswar Singh upheld the trial court order directing a DNA test to prove conclusively whether Amar, the respondent, was the biological son of Chatrabhuj Pradhan, the appellant. Pradhan had asked the court to overturn the trial court order.

Indian law has always contained a strong presumption of legitimacy. Section 112 of the Indian Evidence Act, 1872, states that a child is presumed to be legitimate unless the party disputing paternity proves that there was “non-access” for the relevant period of the marriage. The section was transplanted exactly into the newer Bharatiya Sakshya Adhiniyam (BSA) as Section 116.

When the 1872 Act was passed, however, there was no scientific means of determining paternity. That is no longer the case.

After its invention by a British team in 1984, DNA testing became available commercially in the late 1980s. The development was slower in India, remaining restricted to government laboratories well into the 1990s, but the legal community caught up fairly quickly.

Acid test

In 1991’s Kunhiraman vs Manoj, the Kerala High Court accepted the results of a DNA paternity test after a magistrate had ordered its use. In the case, Section 112 didn’t apply since the two parties weren’t married. The case nevertheless presaged an increase in the use of DNA testing in the country’s legal system.

By the late 1990s, testing had become commercially available in major cities. Today, a DNA test can be conducted for under Rs 15,000.

With that development came a question for the judiciary: Should DNA tests become routine in paternity disputes?

The court did not immediately answer the question, but it did address a related query. In 1993’s Goutam Kundu vs State Of West Bengal, the court considered the case of a husband who had demanded a blood test, a much older technology, to prove he was not the real father of a child. Blood tests do not profile DNA, but they reveal blood groups. It is possible for a blood test to reveal conclusively that someone could not have fathered a child.

The court, however, rejected the request. It ruled that Section 112’s burden of proof on the husband was far stronger, and a blood test could not be the first resort—it would first require the husband to make a prima facie case of “non-access”. It also noted that nobody could be compelled to give up blood for analysis. While not directly addressing DNA, the court’s principle was widely seen as applicable to DNA testing as well.

Any lingering doubts were cleared in 2005. In Banarsi Dass vs Teeku Dutta, a woman had filed for a succession certificate that would allow her to inherit the properties of her deceased father. That man’s brothers, her supposed uncles, opposed her, claiming that she was not the deceased’s daughter at all. A trial court had ordered DNA testing to decide the issue; the high court disagreed.

The Supreme Court upheld the high court’s decision, refusing to order a DNA test. It ruled that DNA testing is “not to be directed as a matter of routine”.

Strikingly, it decided that the “result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112”, in effect stating that a DNA test alone could not overturn the presumption of paternity under Section 112. In doing so, it cited the welfare of the child above all: “the law leans in favour of the innocent child from being bastardised.”

Striking a balance

The bench had clearly set out a doctrine—but when should a test be ordered?

The court would most clearly articulate its dilemma in 2010. A separated couple’s dispute over maintenance had escalated. After the wife demanded maintenance payments, the husband claimed their child was not his. The state commission for women ordered DNA testing, and the high court upheld the order on appeal.

In its decision, the court acknowledged the changing environment. DNA testing had become commonplace and was widely considered unimpeachable. On the other hand, its use could violate the “right to privacy of an individual”. Considering the issue, the court decided that the judiciary “must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed”.

The court had been consistent thus far: DNA testing should not become routine. But what if the test had already been conducted? The court had implied in its 2005 Banarsi Dass decision that even a negative DNA result would not overrule the presumption of paternity.

In 2014, however, the court had to address the problem directly. A husband had denied the paternity of a child born during a couple’s marriage. DNA testing had been conducted during the litigation, and the results excluded the man as a possible father.

Here, the Supreme Court partially reversed course. It accepted the evidence. Noting the strength of the scientific evidence, and its wide acceptance world over, the court decided that “when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former”.

The case created, in effect, a two-stage test for paternity. When DNA results were not available, the presumption of legitimacy under Section 112 held true, and the party disputing paternity must make a strong prima facie case to challenge it. When DNA results are ordered, however, they must be treated as conclusive.

Even so, DNA testing remained a last resort. The top court has proven particularly reluctant to order it. Since the 2017 judgement in K. Puttaswamy, which definitively upheld the existence of a right to privacy under the Constitution’s Article 21, its reasoning has seen an interesting shift: from the older standard of “don’t bastardise the child” to a more modern rationale that centers bodily autonomy and privacy rights.

In January 2025, for instance, the court refused to order DNA testing in a paternity dispute. It articulated the problem in terms that explicitly made privacy rights the key factor: “On one hand, courts must protect the parties’ rights to privacy and dignity… On the other hand, courts must assess the child’s legitimate interest in knowing his biological father.”

While the court ultimately refused to order the test, its ruling had introduced a new factor—the child’s “right to know”, which itself carried an inherent interest in conclusively resolving paternity.

This ‘right to know’ approach began to percolate upwards from High Courts as well. In 2025, the Punjab & Haryana High Court ruled that a child’s right to know overruled the supposed father’s right to privacy. The Allahabad High Court made a similar ruling this March.

In both these cases, it should be noted, there wasn’t strong documentary evidence for either side of the dispute. Until recently, the Supreme Court had yet to rule on what should happen in cases where a DNA test was the only means of resolving the problem.

What Supreme Court did

That is what the court did Friday. It ruled that while the supposed father did have a right to privacy, in this case it did not outweigh the child’s “desire for closure on a question that has loomed large on his life throughout”.

The court did not hold that a child possesses an unrestricted right to demand genetic testing, nor did it abandon the principle that privacy deserves substantial protection. Instead, it appears to have concluded that where paternity itself is the central issue before the court, where existing evidence is inadequate to resolve the dispute, and where DNA testing is the only realistic means of discovering the truth, privacy interests may have to give way.

For some lawyers, the decision is a step in the right direction. “The truth should be elicited,” said senior family lawyer Prabhjot Jauhar. Speaking to ThePrint, he argued that courts have relied too heavily on Section 112, which is now over 150 years old and far predates current scientific methods. “It’s an archaic law,” he said, “We are supposed to be a developing country. Why shouldn’t we have a progressive mindset?”

Jauhar also noted the discretion still given to judges in deciding when DNA testing is called for. “There’s no uniform law,” he noted. “That’s the problem.”

In deciding that there are times at which a child’s right to know holds sway, the court has taken a step closer to the paternity doctrines that have developed in many jurisdictions across the world.

The European Court of Human Rights, interpreting the right to private life under Article 8 of the Convention, has repeatedly held that knowledge of one’s parentage forms part of an individual’s personal identity. In cases such as Mikulić vs Croatia and Jäggi vs Switzerland, it reasoned that uncertainty about biological origins can profoundly affect a person’s psychological well-being and sense of self, and that individuals have a strong interest in discovering the truth about their ancestry even many years after birth.

Other courts, across places like Canada and Australia, have noted the practical considerations in resolving paternity: Knowledge of one’s biological family can be important not only to identity and personal history, but also to understanding medical risks, hereditary conditions, and genetic predispositions. For these courts, living a fully informed private life depends, at least in part, on access to accurate information about one’s origins.

India’s Supreme Court has not yet gone so far. It has not recognised a specific constitutional right to know one’s biological origins, nor has it located such a right within the broader right to privacy under Article 21. Instead, its jurisprudence continues to frame these disputes as a conflict between competing interests: the alleged father’s right to privacy and the child’s interest in discovering the truth about his parentage.

Friday’s judgement does not resolve that tension. What it does is make clear that the child’s interest is no longer a peripheral consideration. For decades, the court’s paternity jurisprudence was dominated by concerns about legitimacy, family stability and the risk of stigma. More recently, the focus shifted to bodily autonomy and privacy. This ruling introduces a third constitutional value into the equation: the individual’s interest in understanding his own origins.

Whether that interest ultimately develops into a recognised constitutional right remains to be seen. But by holding that a DNA test could be compelled because the respondent’s search for an answer outweighed the appellant’s privacy objection, the court has taken its clearest step yet towards recognising that biological parentage is not merely a matter of legal status, but also a matter of personal identity.

(Edited Nardeep Singh Dahiya)