“Mater semper certa est”: The mother is always certain”, while the father is not, can be a scientific theory of certainty. “Pater est quem nuptiae demonstrant” :  the father is he, whom the nuptials indicate has gained a sturdy legislative recognition which resulted in the formulation of the rule of evidence envisaged in Section 112 of the Indian Evidence Act, 1872. This is also certain that legal presumption under said section 112 is binding to all courts being the land of law.

In recent days, the legal fraternity is pulsating with the perception that the courts including apex court is permitting paternity test in case of any dispute raised by either spouse regarding the paternity of child without examining the issue of access between the spouses. The examination of various leading judgement reveals following with regards to paternity dispute:


Case Law Facts Regarding Access between Spouses during Relevant period of Conception of child Paternity Test Permitted or Not Remarks
Goutam Kundu vs. State of West Bengal and another, (1993) 3 SCC 418


Non-Access could not be proved by the appellant husband during the conception period. Paternity test not permitted Case of maintenance under section 125 of CrPC.
Kamti Devi and another v. Poshi Ram, AIR 2001 SC 2226


Non-Access was proved by the respondent husband during the conception period Paternity test was not required as non-access was proved Case of right of property of father by mother for illegitimate son.
Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449 Case of succession Dispute Paternity test was denied DNA test required in deserving case.
Sham Lal @ Kuldeep vs. Sanjeev Kumar and others,

(2009) 12 SCC 454


Access of father to plaintiff mother not denied by the defendant brother and sister (para 40) Paternity test was not required as access was not denied. Dispute of sncestral property between brothers and sisters.
Bhabani Prasad Jena vs Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633


Access or its otherwise was not argued by the appellant husband Paternity test ordered by High Court set aside Case with regard to divorce proceeding
Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576. Access was in dispute, wife claiming access whereas the husband denying it. Paternity Test was already carried out on order of coordinate bench. Case of maintenance under section 125 of CrPC.
Dipanwita Roy vs Ronobroto Roy, CIVIL APPEAL NO.   9744    OF 2014, S.C. Access was in dispute, wife claiming access whereas the husband denying it Paternity Test was permitted Case of Divorce on the ground of adultery.

There are various High Court judgment citing and taking support from above cited apex court judgement in cases of divorce, maintenance issue of wife and succession of property. The moot point in catena of judgement is principle of legal presumption under section 112 of the Indian Evidence Act, 1972 or the reasonable and flinching evidence on record to create doubt regarding the paternity of child. In case of undisputed access between spouse during conception period, it is golden rule that test for paternity cannot be ordered by the court.

The Hon’ble Delhi High Court in case of ‘W’ vs ‘H’ & Anr (26 August, 2016) MAT.APP. (F.C.) 17/2016 has analysed the issue raised in such litigation under following consideration:

  1. Direction for compelling a medical examination or a DNA test to establish any fact – when to be made? (paras 26 to 33) 
  2. Displacement of the conclusive presumption under Section 112 of the Indian Evidence Act – Standard of proof to do so? (paras 34 to 43)
  3. What is the meaning of “access” and “non-access”(paras 44 to 54)
  4. Summation of the principles laid down by judicial precedents on consideration of an application for an examination (para 55)
  5. Prima facie case (paras 56 to 59)
  6. Whether the case of non-access was specifically pleaded by the respondent no.1 (paras 60 to 67)
  7. Whether there is non-traverse by the wife of the husband’s pleadings, and thereby, deemed admission thereof? (paras 68 to 90)
  8. Is the court bound to pass orders premised on admissions of parties? (paras 91 to 102)
  9. Admissions of paternity by the husband on court records – impact on “prima facie case” (paras 103 to 112).
  10. Conduct of the husband despite his allegations against his wife – impact thereof (paras 113 to 134) Concealment and statement of wrong facts – whether impacts consideration of prima facie case? (paras 135 to 141)
  11. DNA report dated 23rd April, 2015 – whether supports a prima facie case in favour of the respondent no.1 – husband? (paras 142 to 153)
  12. In the facts of the present case, effect of the presumption under Section 112 of the Indian Evidence Act (paras 154 to 168)
  13. Ensuring the Constitutional rights of the child (paras 169 to 175)

In conclusion, the Hon’ble Delhi High Court in this case has stated following:


  1. ‘H’ – respondent no.1 husband has not pleaded “non-access” to the appellant wife or “no opportunity” at the time when Baby ‘X’ could have been conceived. On the contrary, he has admitted “access”. ‘W’ – the appellant wife has effectively denied the pleas of adultery.


  1. ‘H’ has failed to make out a prima facie case justifying an order for compelling Baby ‘X’ to give a sample for a DNA examination. The repeated admissions of paternity by ‘H’ in his pleadings, affidavit and his statement on oath in support on judicial record militate against a prima facie case in favour of ‘H’ for making the order prayed for. The husband ‘H’ has made admissions of paternity in public records of the Registrar of Births as well as bank record. No explanation was tendered before the ld. Family Court Judge or before us. The respondent no.1 has concealed material facts; is guilty of mis-statement before the Family Court and his conduct post-conception of the child do not support a prima facie case in his favour justifying the impugned order. The respondent no.1 has also not established imminent need for the order or that such order was at all necessary for a just decision of the case. The impugned order is unreasoned, contrary to law and unsustainable.

The various court has deliberated on issue of paternity but days are not far off when people will start disputing maternity also in this scientific age, when ovum donation and surrogacy is becoming common practice.

Rajni Sinha

Advocate High Court



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