The husband is demanding a DNA test to check the paternity of our son without having any basis. There is a dispute between us to which my husband has thrown me and my son away from his home. In the last three years me and my parents have been trying to solve the issue but my husband is very much reluctant to adopt us. He is very arrogant and an officer in the forest department. When all attempts failed to amicably settle our dispute I filed divorce case in Bhopal. In the said divorce case my husband has alleged that I have an extra marital affair and the son is born out of that illegal affair. In that pretext he also applied to conduct a DNA test of our son to determine his paternity. I have opposed but the court has accepted his application and fixed a date in August 2026 for argument. My son is twelve years old and such a demand creates a doubt in the mind of my son about who his real father is. Please help.
Asked from: Madhya Pradesh
Your husband cannot compel you to undergo a DNA test or give a blood sample for a serological examination. The law is well settled on this issue. The Supreme Court, in Gautam Kundu v. State of West Bengal (1993) 3 SCC 418, held that:
No person can be compelled to give a blood sample for analysis. The Court also held that a DNA or blood test cannot be ordered as a matter of routine merely because one party makes such a request.
If a husband seeks a DNA test to dispute the paternity of a child, he must first establish a strong prima facie case by producing credible evidence. In particular, he must show that he had no access to his wife during the period when the child could have been conceived. In other words, he must prove that the husband and wife were not living together or had no opportunity for sexual relations during the relevant period.
Therefore, it is important to carefully examine the application filed by your husband. Unless he has specifically pleaded and supported with evidence that he had no access to you during the probable period of conception, the Court cannot ordinarily direct a DNA test.
This requirement is mandatory because Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 112 of the Indian Evidence Act, 1872) creates a strong legal presumption that a child born during the subsistence of a valid marriage is the legitimate child of the husband.
This presumption can be displaced only by proving non-access between the spouses during the relevant period. The Supreme Court has reaffirmed this principle in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2024) 7 SCC 773. The Court held that:
Where the husband and wife were living together during the period of conception, the legal presumption of legitimacy remains conclusive. Even if a DNA test were to indicate otherwise, the statutory presumption under the law would continue to operate.
More recently, in Ivan Rathinam v. Milan Joseph, AIR 2025 SC 1004, the Supreme Court held that:
Before directing a DNA test, the Court must first evaluate the evidence already available on record. Only if such evidence is insufficient to decide the issue should the Court consider ordering a DNA test.
Thus, the legal position is clear. A husband seeking a DNA test must first prove, through reliable evidence, that he had no access to his wife during the period when the child could have been conceived. Unless this essential requirement is satisfied, the Court should not direct a DNA test.
In your case, your son is now 12 years old. The present dispute appears to have arisen only because of matrimonial differences between you and your husband. During all these years, your husband never questioned the paternity of your son. Moreover, there is ample documentary evidence showing that he has consistently acknowledged himself as the father of the child.
In these circumstances, it is highly unlikely that the Court would allow your husband’s request for a DNA test. In the absence of any pleading or evidence establishing non-access during the period of conception, his application is liable to be rejected.
