(This article is written by Aarushi Vats, Chaudhary Charan Singh University, B.A. LL.B., 5th Year, during her internship at LeDroit India.)

Scope of Article

• The policy rationale for treating this presumption as conclusive proof rather than a rebuttable one
• The guidelines laid down in Gautam Kundu v. State of West Bengal against ordering blood or DNA tests as a matter of course
• The tension that emerged once DNA profiling offered a scientifically near-certain alternative to the statutory presumption
• A concluding assessment of where the law presently stands under the Bharatiya Sakshya Adhiniyam, 2023
• The statutory provision of the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872, as re-enacted in Section 116 of the Bharatiya Sakshya Adhiniyam, 2023
• How the Supreme Court has navigated this tension in subsequent cases from Nandlal Wasudeo Badwaik to the 2023 judgment in Aparna Ajinkya Firodia and a recent reaffirmation in 2026
• The constitutional dimensions: bodily autonomy and privacy as a limitation upon judicial compulsions

Abstract

Section 112 of the Indian Evidence Act, 1872 has been recast as Section 116 of the Bharatiya Sakshya Adhiniyam, 2023. It provides that a child born during the subsistence of a marriage is to be presumed to be legitimate conclusively unless the impossibility of access of the husband to the wife has been proved. Though this was applied without much difficulty for a century, the emergence of DNA profiling as a scientifically reliable method to determine parenthood has placed this law in a tight spot. Courts have had to decide whether a party can be compelled to undergo a DNA test at all, and what happens to the conclusive presumption once such a test has actually been taken and contradicts it. This article traces that development starting from the landmark ruling in Gautam Kundu v. State of West Bengal, which held that blood or DNA tests cannot be ordered routinely and laid down guidelines to protect the legitimacy of children from being disturbed on a mere roving inquiry, through the subsequent decisions that qualified this position once a DNA report was actually on record, down to the Supreme Court’s 2023 judgment in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia and a 2026 reaffirmation of the same principles.The article contended that the law has now converged into a working compromise – one that preserves the status quo while simultaneously introducing a new paradigm in paternity establishment. The presumption remains the default position and a DNA test is not to be ordered routinely; but in cases of a clear prima facie showing of non-access, or upon obtaining a valid report and placing it on record, the science cannot be wished away.

Keywords: Presumption of legitimacy; Section 112, Indian Evidence Act; DNA test; Section 116, Bharatiya Sakshya Adhiniyam; conclusive proof; paternity

 1. Introduction

A child’s legitimacy has never been treated by Indian law as a fact to be proved afresh every time it is doubted. Instead, the law starts from a presumption, and a strong one at that: if a child is born while its mother is validly married, the child is taken to be the legitimate offspring of the husband, and this is described in the statute itself as “conclusive proof”. The reason this matters practically is that conclusive proof, unlike an ordinary rebuttable presumption, is not supposed to give way merely because one party produces evidence pointing the other way. It gives way only on proof of a specific fact, namely that the spouses had no access to each other when the child could have been conceived.

This framework worked without much controversy for a long time because, before the advent of genetic testing, there was rarely any way to disprove paternity with real certainty short of proving non-access itself. DNA profiling changed that.It presented, for the first time, a test which could establish or rebut a biological parentage with a level of accuracy beyond the ability for the drafters of the Evidence Act to have anticipated in 1872. The courts were then faced with a truly difficult issue: whether a party could be allowed, or indeed forced to use this new scientific instrument to displace a presumption the legislature had deliberately made conclusive, if so, upon what conditions? This article follows the answers given by the Supreme Court to this question beginning from the foundational guidelines in Gautam Kundu and tracking the law to the most recent restatement.

. 2. The Statutory Scheme

Section 112 of the Indian Evidence Act, 1872 provides that if a person was born during a valid marriage or within two hundred and eighty days of its dissolution of the marriage when the mother was still unmarried then that fact itself is a conclusive proof of legitimacy. Through except in the case where it can be shown that the parties to the marriage were having no access to each other at any time when the child could have been conceived. The Indian Evidence Act, 1872  differentiates between three types of statutory presumption under Section 4, “may presume” where the Court is at liberty to treat as proved or may ask for further proof; “shall presume” where the Court is bound to treat it as proved unless disproved; and “conclusive proof”. Section 112  therefore falls within the ambit of the third and most stringent category and this classification finds its parallel in the third category in Section 116 of the new law, which has replaced the 1872 Act with effect from July 2024. The new provision repeats  the language of the old one almost verbatim, the only difference is the numbering and the surrounding statutory framework, as the three levels of presumption are now defined separately in Section 2 of the new Act instead of being grouped together. Courts interpreting Section 116 have consistently applied all the case law that had developed around Section 112 on the ground that the substance remained the same.

The policy behind making this particular presumption conclusive, rather than merely rebuttable, is not hard to see. A child has no control over the circumstances of its birth, and the law has traditionally been unwilling to let a child’s status turn on the outcome of a dispute, often a matrimonial one, between its parents. Branding a child illegitimate has real consequences for inheritance, maintenance, and social standing, and the presumption exists precisely to prevent that consequence from being triggered too easily.

3. Gautam Kundu v. State of West Bengal: The Foundational Guidelines

The case of Gautam Kundu v. State of West Bengal, (1993) 3 SCC 418 presents the seminal decision on the law relating to legitimacy. It was a proceeding under Section 125 of the Code of Criminal Procedure, for the enforcement of maintenance. The husband moved an application for a blood group test of the wife and the child to rebut the presumption of legitimacy under Section 112 of the Evidence Act. His ground was that he had no access to them and that he was being harassed to pay maintenance due to his status in society. The Supreme Court denied the request and enumerated principles which have since been repeatedly invoked in similar cases. It held that first, a court in India cannot routinely order a blood test; second, if the application is merely a roving inquiry it cannot be entertained; third, there needs to be a prima facie showing of non-access before the presumption under Section 112 can be challenged and that the court must be satisfied that there is a sufficient basis for entertaining such an application; fourth, the court has to be mindful of the fact that ordering a blood test may amount to branding a child as a bastard and the mother as unchaste; and, fifth, that no person can be forced to give a specimen of blood for testing.

There are two aspects of this decision that are worth noting. One has to do with the procedural requirements for challenging legitimacy by relying on the principle of non-access. By virtue of the third finding, the Court has laid down that in order to obtain a blood test, the challenger must first satisfy the court that there is a prima facie showing of non-access. This places the burden on the person seeking the test to first demonstrate that access was not had. By doing so, the Court was perhaps taking cognizance of the fact that a blood test is not merely a discovery tool but is, in fact, a conclusive test. The other aspect is that the Court noted, in the fifth finding, that no person can be forced to give a specimen of blood. Thus, even if the other requirements for a blood test are fulfilled, a court cannot compel a person to give a sample. However, it could take into account the refusal to provide a sample, as an adverse finding against the person who refused, a matter which subsequent decisions had to address.

4. The Arrival of DNA Evidence and Its Tension with Section 112

Gautam Kundu was decided in the context of blood group testing, which can at best establish paternity with a certain level of probability but not with absolute certainty. This is because DNA profiling involves a much more reliable test that can establish or eliminate paternity with a very high degree of accuracy. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576, the Supreme Court was called upon to interpret Section 112 when a DNA report had already been filed and recorded in adjudication, which ruled out the husband as the biological father. It held that “by Section 112, the legislature does not contemplate creating a legal fiction, but only provides for a rebuttable presumption, and, therefore when such a presumption is directly contradicted by a scientifically proven finding, the latter must prevail over the former.” Further, “a presumption is merely a directional aid to the fact-finding process in the Court, which is meant to facilitate the attainment of truth in cases where it may not be available by any other means. Therefore, when the truth emerges in such cases, the presumption must cease to have any relevance.”

In the next year, in Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365, the Court faced the converse situation where a party was unwilling to undergo the test and sought to rely on the opposite party’s presumed consent. In dealing with this request, the Court observed that while a party cannot be physically compelled to provide a sample (in accordance with the fifth Gautam Kundu guideline), the Court can draw an adverse inference from the party’s uncooperativeness as per the observations of the Supreme Court in Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633. Accordingly, a fine balance was struck between the rights of the parties so that no party can be subjected to bodily harm while simultaneously discouraging them from evading the Court’s process.

5. Aparna Ajinkya Firodia v. Ajinkya Arun Firodia: Consolidating the Test

The latest edition of the doctrine is Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, 20th February, 2023, (2024) 7 SCC 773, where the husband, who alleged that his wife had confessed to adultery, had a private DNA test done. Which had  led him to conclude he was not the biological father of the younger of the two sons that he and his wife both had. Father seeked  a DNA test of the boy, now aged 7, to prove this in his case for divorce before the Family Court, it was allowed but with a warning that refusing to do so would be drawing adverse inferences. His wife approached the Bombay High Court and then the Supreme Court arguing that repeated genetic analysis of the child was not in his best interest and also was a  violation of her own Article 21 rights to privacy and dignity. 

In Justice B.V. Nagarathna’s opinion for the Bench, the whole of the line of precedents starting from Gautam Kundu was summarized in an organized fashion dealing with DNA testing of a minor child in which were included such principles as a DNA test of a minor is not something that is to be ordered. The Court thus set aside the direction for a further DNA test in light of the child’s best interests being held to outweigh the husband’s wish for confirmatory proof, particularly where he had already obtained a private report and the marriage was being dissolved on other independently sufficient grounds. The significance of Firodia derives from the fact that in cases involving a minor, it reframes the focus from one of the evidentiary nature of the non-access into one of the child’s best interests, layered onto the Gautam Kundu framework rather than replacing it. The presumption under Section 112 is still conclusive by statute, but the decision to order the very test that could displace it now explicitly takes account of considerations beyond the immediate dispute between the spouses.

6. A Recent Reaffirmation

The significance of the approach can be observed from the case of Chaturbhuj Pradhan v. Amar Pradhan (2026 INSC 600), decided on 29 May 2026, wherein an appeal was rejected against the order of conducting a DNA test in a prolonged paternity case. Again, the Court followed the guidelines in Gautam Kundu and the principles established in Firodia, stating that a DNA test could be ordered in a case if it is absolutely essential for resolving the dispute and it is in the interest of justice, but always a last resort.  The recurrence of the same analytical framework, nearly thirty-three years after Gautam Kundu and three years after Firodia, suggests that the Court now treats this as settled doctrine rather than an open question, even as it continues to be applied afresh to new fact patterns.

7. The Constitutional Dimension: Bodily Autonomy and Privacy

Running alongside the evidentiary question is a constitutional one. A direction to undergo a DNA test necessarily involves the extraction of bodily material and the generation of deeply personal genetic information, both of which implicate the right to privacy recognised as part of Article 21 by the Supreme Court’s nine-judge Bench in K.S. Puttaswamy v. Union of India. This is precisely why the Gautam Kundu guidelines refused to allow compulsion in the first place, and why later decisions have consistently treated an adverse inference, rather than physical compulsion, as the only permissible consequence of a refusal. Firodia adds a further layer to this by recognising that a child, quite apart from either parent, has its own dignitary and welfare interests that a court must weigh independently, since the child is rarely in a position to assert those interests for itself in the course of a dispute between its parents.

8. Conclusion

The law on the presumption of legitimacy has moved a considerable distance since 1872 without the underlying text of the provision itself changing very much at all; what has changed is the judicial gloss placed on it in response to a scientific development the original drafters could not have foreseen. Gautam Kundu remains the starting point, and its central insight, that the presumption exists precisely to prevent legitimacy from being disturbed on a mere roving inquiry, continues to shape every later decision. At the same time, the Court has been unwilling to let the presumption operate as a blindfold once a reliable DNA result is genuinely on record, as Nandlal Wasudeo Badwaik shows, while insisting, through Dipanwita Roy and Firodia, that no one, least of all a child, can be dragged through repeated genetic testing without a real and pressing need for it. Read together, and now carried forward unchanged in substance into Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, these decisions leave the presumption of legitimacy intact as the default rule while carving out a narrow, carefully supervised space in which science is allowed to speak where the law alone cannot settle the truth.