No Grounds to Question Child’s Legitimacy Without Plea of ‘No Access’

The Bombay High Court cancelled a Family Court’s order that allowed a DNA test to check if a child was born from the husband. The Court said that unless the husband clearly says he had no physical relationship (access) with his wife during the time the child could’ve been conceived, such a test cannot be allowed. The law gives strong protection to the child’s legitimacy if the child is born during the marriage.

Brief Facts of the Case

• The couple got married in December 2011.
• The wife left the house in January 2013, and she was already 3 months pregnant.
• Their child was born in July 2013.
• The husband first filed for separation, then later for divorce alleging adultery (cheating), cruelty, and desertion.
• During the divorce case, he asked the court to allow a DNA test to check if the child was his.
• The Family Court allowed it, but the wife challenged this in the High Court.

Legal Provisions Involved

• Section 112 of the Indian Evidence Act: If a child is born during marriage, it is legally assumed to be the husband’s child—unless it is proven that the husband had no chance to be with the wife during that time.
• Section 4 of the Indian Evidence Act: Explains what “conclusive proof” means—proof that can’t be questioned unless the law allows it.

Arguments of the Petitioner (Wife)

• She never agreed to the DNA test; just saying she’ll follow court orders doesn’t mean she gave consent.
• The husband never claimed that he didn’t have any physical access to her at the time of conception.
• In earlier notices and court documents, he accepted that she was pregnant and never doubted that the child was his.
• Forcing a child to take a DNA test without strong reason is unfair and hurts the child’s privacy.

Arguments of the Respondent (Husband)

• He had doubts about the wife’s character and wanted the DNA test to be sure about the child’s parentage.
• He said scientific tests like DNA are reliable and should be allowed.
• He even agreed to pay compensation if the test showed he was the father.

Court’s Observations

• Alleging that the wife had an affair is not enough to ask for a DNA test.
• The husband never clearly said or proved that he had no access to his wife during the time of conception.
• From all his earlier actions, it seemed he believed he was the father.
• A child’s dignity and rights are important, and the court should protect them—especially when parents are fighting.
• DNA tests should only be ordered in serious cases.
• Just because the wife said she’ll follow court orders doesn’t mean she agreed to the DNA test.
• The court must always act in the best interest of the child.

Conclusion of the Judgment

Since the husband never denied being the father of the child in any formal way, and didn’t prove he had no access to his wife, there was no reason to allow the DNA test.
The High Court cancelled the Family Court’s order.
The husband’s application for a DNA test was dismissed.
The wife’s petition was allowed.

Comments from the author of this website

This judgment raises difficult and uncomfortable questions—especially from the perspective of men who find themselves trapped in marital disputes involving doubts about paternity.

According to Section 112 of the Indian Evidence Act, if a child is born during a valid marriage, it is automatically presumed to be the husband’s child. This is called a “conclusive presumption.” The only way to break this legal assumption is if the man can prove that he had no access to his wife during the possible time of conception.

But here’s the problem: in real life, proving “no access” is not just hard—it’s nearly impossible. Marriages are complicated. Even when couples are living apart, they may meet occasionally. Even if they’re fighting, they may still be physically intimate. The law doesn’t consider this grey area. It demands absolute proof, like being out of the country, medically incapable, or completely separated with no contact. If that level of proof isn’t shown, the man has no legal right to question paternity—even if he strongly suspects the child may not be his.

This creates a frustrating situation for men. DNA tests are scientific, accurate, and easily available today. They could give clear answers in hours. But the law, in the name of “public morality” and child welfare, blocks access to this truth unless legal hurdles are first cleared. The result is that a man may spend his entire life raising a child and carrying financial and emotional responsibility—without ever knowing for sure if he’s the biological father.

What’s even more concerning is that any attempt by the man to seek the truth is often seen as an attack on the woman or a threat to the child’s rights. His doubt is labelled as cruelty or baseless suspicion. The courts tend to treat the mother’s privacy and the child’s reputation as more important than a man’s right to know the truth about his own life.

This imbalance in the system has long-term consequences. Men are legally bound to provide for a child they’re not even sure is theirs. They’re denied the right to clear their doubts through modern scientific means. In contrast, women can allege cruelty or adultery and ask for protection or maintenance without the same level of evidentiary burden. This double standard causes emotional trauma, loss of trust in the legal process, and often leads to years of silent suffering.

No one is saying that children’s rights or dignity should be compromised. But justice must mean fairness for everyone—including men. If technology exists that can resolve disputes quickly and clearly, the law should at least consider how to use it responsibly and equitably.

Final Thoughts

This case highlights a difficult balance between legal presumptions, individual rights, and truth. While the law aims to protect the dignity of the child and the structure of marriage, it also ends up closing the door for genuine concerns raised by husbands.

The system must evolve to ensure fairness for all sides. It’s time the law finds a middle path—one that respects the child’s rights but also doesn’t silence a man’s right to seek the truth about his own paternity.

Read Complete Judgement Here