Indian law can’t keep pace with DNA paternity tests. Families pay the price

Once, the first question in a paternity dispute was whether a court would permit DNA testing. Today, the question is being asked in living rooms rather than courtrooms.

Illustration by Shruti Naithani | ThePrint

A husband suspected that the child born during his marriage was not biologically his. Instead of approaching a court, he purchased a privately available DNA testing kit, collected samples at home, and obtained a laboratory report. This week, the Supreme Court held that a child’s paternity test can be permitted where the question of parentage lies at the heart of a matrimonial dispute. 

The ruling has reignited an old debate: if science can establish biological fatherhood with accuracy, should courts always permit that truth to be investigated? The answer, surprisingly, is no.

Only days before the Supreme Court’s ruling, the Madras High Court refused to order a DNA test in a prosecution for bigamy, holding that the child’s paternity was merely a collateral issue and had no bearing on proving the alleged offence. DNA, the court observed, cannot become a fishing expedition simply because it may reveal another truth. The contrast is striking. The Supreme Court permitted the test in one context, while the Madras High Court refused it in another. The difference lies not in the reliability of DNA, but in the purpose for which it is sought.

When DNA meets Section 112

At the centre of the debate sits Section 112 of the Indian Evidence Act, 1872, now reflected in Section 116 of the Bharatiya Sakshya Adhiniyam, 2023.

The provision creates one of the strongest presumptions in Indian law: a child born during a valid marriage is presumed to be the legitimate child of the husband. That presumption may be displaced only in limited circumstances, principally by proving non-access between the spouses at the relevant time.

The rule was drafted in 1872, nearly a century before DNA profiling was conceived. Yet, it continues to govern some of the most fundamental questions of modern family law.

Section 112 does not reject biological evidence. It performs a different function, allowing the law to recognise legal fatherhood without requiring biological proof of paternity, unless the statutory conditions for rebuttal are satisfied.

The point was brought into sharp focus by the Supreme Court in Ivan Rathinam v. Milan Joseph, 2025 INSC 115. In the case, Milan Joseph sought to establish Ivan Rathinam as his biological father, although he was born during the subsistence of his mother’s marriage to Raju Kurian. The Supreme Court declined to direct a DNA test. It held that the presumption under Section 112 could not be displaced merely because Rathinam was alleged to have had a relationship with Milan’s mother. In the absence of proof of non-access between the spouses, the statutory presumption continued to operate. The Court also found no “eminent need” for the test and cautioned against permitting DNA testing to become a roving inquiry into a person’s private life.

The judgment draws an important distinction between establishing biological paternity and recognising legal fatherhood. DNA may answer the biological question with extraordinary precision. But the law must first decide whether that question should be investigated and whether the result should alter an existing legal relationship.

That does not mean DNA evidence is unreliable or legally irrelevant. Where the circumstances justify testing, a DNA finding can have significant consequences for parentage and related legal rights. Section 112 does not shut the door on biological truth. It merely regulates when that truth can alter legal rights.

The evolution of judicial restraint

This is not the first time Indian courts have resisted treating DNA testing as a routine solution to paternity disputes.

In Goutam Kundu v. State of West Bengal (1993), the Supreme Court cautioned against ordering blood tests mechanically in paternity litigation. More than a decade later, Banarsi Dass v. Teeku Dutta (2005) reiterated that DNA testing must be justified by the circumstances of each case and cannot become a matter of routine. The concern was not the reliability of the test, but the consequences of ordering one.

A DNA report may settle the biological question while simultaneously triggering matrimonial litigation, allegations of adultery, disputes over maintenance, succession and inheritance, and profound emotional consequences for a child who has known only one father. Judicial restraint developed not because courts distrusted genetics, but because they recognised that biological certainty does not automatically produce legal or social certainty.

The constitutional dimension became sharper after K.S. Puttaswamy v. Union of India (2017), when the Supreme Court recognised informational privacy as part of the fundamental right to life and personal liberty under Article 21. 

Few forms of personal information are as intrusive as genetic data. A DNA sample reveals far more than identity. It may disclose parentage, ancestry, hereditary traits, and biological relationships involving parents, children, and other close relatives who never consented to the testing.

The ease of DNA testing makes judicial scrutiny all the more important. Courts must balance the search for truth with privacy and the child’s interests.

The ND Tiwari case

The famous paternity litigation involving former Uttar Pradesh chief minister ND Tiwari illustrates the opposite end of the spectrum. Rohit Shekhar claimed that Tiwari was his biological father. Tiwari resisted DNA testing, invoking privacy and dignity. The Delhi High Court nevertheless directed him to provide a sample. In 2012, the DNA test established that Tiwari was Shekhar’s biological father, and the court subsequently recognised the relationship.

The Tiwari litigation demonstrates that courts can permit DNA testing when biological parentage is central to the dispute and the circumstances justify a search for the truth. But the recent Supreme Court ruling and the Madras High Court decision demonstrate an equally important converse: DNA testing may be refused when parentage is collateral or when the statutory presumption under Section 112 cannot be lightly disturbed.

Taken together, these decisions point to a clear principle: DNA can establish biological parentage and, in an appropriate case, determine legal rights. But the law must first decide whether the test should be undertaken and what legal weight its result should carry.

When the marketplace arrives before the court

The legal landscape has changed in another important way. Until recently, the first question in a paternity dispute was whether a court would permit DNA testing. Today, that question is increasingly being asked in living rooms rather than courtrooms. The answer comes in a “Peace of Mind” DNA kit, available in the open market.

A person can purchase a paternity kit online, collect cheek swabs at home and receive a laboratory report within days. It requires no judge to examine necessity, no court to balance competing rights, and no need to consider the interests of the child before the sample is collected.

The marketplace has moved the first step of the dispute outside judicial supervision. This is the real challenge posed by consumer DNA testing: the law has developed safeguards around the decision to order a DNA test. Consumer technology simply bypasses that decision.

Gujarat’s warning

The consequences are no longer theoretical. In 2014, Times of India reported that Gujarat was witnessing more than 250 paternity-test cases every year, and that 98 per cent of those cases reportedly confirmed the suspicion that had prompted the test.

The report described a father who approached the court hoping that DNA testing would silence his doubts. Instead, the test established that the daughter he had lovingly raised was not his biological child. The marriage collapsed. The child, who had played no part in the deception, became its greatest victim.

A forensic expert spoke of watching families disintegrate before his eyes. A laboratory owner reportedly stopped accepting private paternity requests after witnessing another father abandon his daughter following an adverse DNA report.

A DNA report stating “not the father” rarely ends the matter. More often, it begins one. For the husband, the report may become the basis of matrimonial proceedings involving allegations of adultery, mental cruelty, deception, or fraud. Questions of maintenance, divorce, and property may immediately arise.

For the wife, a secretly conducted DNA test may itself generate disputes over privacy, dignity, and reputation.

The child, however, bears the heaviest burden. A child who has known one man as a father may suddenly discover that biology tells a different story. Questions of identity, belonging, and acceptance cannot be resolved by a laboratory. The obvious next question is: Who is the biological father?

Ultimately, this brings us back to Section 112. The law distinguishes between legal fatherhood and biological parentage. Section 112 creates a strong presumption of legitimacy to protect family stability. A DNA test therefore cannot be used casually to alter an existing legal relationship. But where a court finds an “eminent need” for testing, the biological finding may have significant consequences for parentage, maintenance, succession, and inheritance.

The child’s right to know

There is one more side to the equation. A child may have compelling reasons to know their biological origin. Identity, family history, and hereditary medical conditions may all make biological parentage deeply important. In some circumstances, parentage may also affect maintenance, succession, or inheritance. 

The alleged father has rights, too. Compelling him to undergo DNA testing intrudes upon bodily autonomy and informational privacy. The result may expose intimate relationships, disturb an existing marriage, and create consequences for another spouse and other children. The law therefore performs a genuine balancing exercise.

To deny DNA testing may leave a child without an answer that is personally and legally significant. To compel it may irreversibly alter the lives of several people. The recent Supreme Court ruling reinforces that DNA testing cannot become a routine investigative tool merely because technology has made it possible.

The regulatory blind spot

Unregulated consumer DNA testing has created a problem that Indian law has only begun to confront. The regulatory questions are becoming difficult to ignore. Who may order a paternity test? Is the consent of both parents required? Can one spouse secretly test another person’s biological material? How long may a laboratory retain genetic samples, and can genetic information be shared with third parties or used for research? These are not merely questions of laboratory procedure.

The Digital Personal Data Protection Act, 2023 provides a broader framework for personal data, but the distinctive nature of genetic information calls for greater clarity on consent, storage, disclosure, and secondary use.

The greatest challenge posed by consumer DNA kits is not the technology. It’s that the kits can answer a biological question before a court has decided whether it should be asked.

Ordering a DNA test may take minutes, but deciding what the result means in law is far more complicated. And as the legal ecosystem struggles to keep pace, courts begin to speak in different voices, leaving families on a rollercoaster of uncertainty.

Jitendra Mohananey is an advocate and former corporate finance professional. He tweets @Mohananey. Views are personal.

(Edited by Prasanna Bachchhav)