DNA Test in Section 125 Maintenance Proceedings: Presumption of Legitimacy Prevails Absent Strong Prima Facie Non-Access

1. Introduction

The Karnataka High Court (Kalaburagi Bench) in SRI B S SRINIVAS v. SMT. NEELAMMA @ MANASA (Order dated 27-01-2026) considered whether a Family Court, in a pending maintenance proceeding under Section 125 of the Cr.P.C., should be directed to order a DNA test of a minor child at the husband’s request.

The petitioner-husband sought to set aside the Family Court’s order rejecting his application (I.A. No. III) filed under Sections 39 and 116 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) read with Section 12 of the Family Courts Act, requesting a DNA test to contest the paternity of the child born during the subsistence of marriage. The High Court exercised its supervisory/inherent jurisdiction invoked as Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (corresponding to Section 482 Cr.P.C.).

The core issues were:

  • Whether a DNA test can be ordered as a routine response to a paternity dispute in Section 125 proceedings.
  • How the statutory presumption of legitimacy (now under Section 116 BSA, akin to Section 112 Evidence Act) operates where marriage and some cohabitation are admitted.
  • Whether the husband’s plea—based on alleged lack of “continuous cohabitation”—constituted a sufficient foundation to rebut the presumption and justify DNA testing.

2. Summary of the Judgment

The High Court dismissed the petition and affirmed the Family Court’s rejection of DNA testing. It held that:

  • DNA tests in paternity disputes are not to be directed as a matter of course or to facilitate a roving inquiry.
  • The court must respect the presumption of legitimacy under Section 116 BSA (Section 112 Evidence Act equivalent) unless a strong prima facie case is made out to show non-access.
  • On the admitted facts—marriage and cohabitation “for a few days”—the husband could not, merely by alleging absence of “continuous cohabitation,” justify questioning the child’s paternity through DNA testing.
  • The Family Court’s inference that the application was moved in a preconceived attempt to avoid maintenance was not found infirm, and no interference was warranted.

3. Analysis

3.1 Precedents Cited

The High Court relied on the Supreme Court decision in Goutam Kundu v. State of W.B., reported in (1993) 3 SCC 418, extracting the controlling principles on blood/DNA testing in paternity disputes.

3.1.1 How Goutam Kundu v. State of W.B. Shaped the Outcome

The High Court used Goutam Kundu for four key propositions that directly governed the petition:

  1. Testing is not routine: Courts “cannot order blood test as a matter of course.” This was applied to reject the idea that any paternity denial in a maintenance proceeding automatically warrants DNA testing.
  2. No roving inquiry: Where an application is made to conduct a roving inquiry, the prayer must be refused. The High Court endorsed the Family Court’s view that the request was not grounded in a legally sufficient foundation.
  3. Strong prima facie case and non-access requirement: The husband must establish non-access to rebut the presumption of legitimacy. The High Court emphasized that the husband’s own admissions (marriage and cohabitation for some period) undermined any claim of non-access.
  4. Consequences and stigma: Courts must consider whether ordering the test would brand the child as illegitimate and the mother as unchaste. This policy concern supported a cautious approach, particularly where the dispute arose in a maintenance context involving a minor child.

Notably, the High Court also echoed Goutam Kundu on the meaning of “access” and “non-access”: they concern the existence or non-existence of opportunity for sexual intercourse, not proof of actual cohabitation at all times. This directly answered the petitioner’s reliance on the absence of “continuous cohabitation.”

3.2 Legal Reasoning

3.2.1 Interplay of Section 125 Proceedings and Paternity Challenges

The High Court accepted the general proposition that in Section 125 Cr.P.C. proceedings, if the husband disputes marital relationship or paternity, a court may direct DNA testing to ascertain the truth. However, it immediately conditioned this power by reiterating that such directions are exceptional and must be justified under the legitimacy presumption framework.

3.2.2 Presumption of Legitimacy under Section 116 BSA (Section 112 Evidence Act Equivalent)

The decision turns on the statutory presumption that a child born during the subsistence of a valid marriage is legitimate, subject to rebuttal only through proof of non-access. The High Court treated the presumption as a strong substantive rule designed to protect the status of the child and social order, not a mere evidentiary convenience.

3.2.3 “Non-access” vs “No continuous cohabitation”

The petitioner’s case was not that there was no opportunity for sexual intercourse, but that cohabitation was not continuous. The Court found this insufficient because:

  • The petitioner admitted marriage and that they lived together “for few days” and were “cohabiting” during that time.
  • Admitted cohabitation negated a prima facie case of non-access, which is the legally relevant threshold.
  • Once opportunity/access is shown, the presumption operates, and mere suspicion cannot displace it.

3.2.4 The “Eminent Need” Threshold and Judicial Caution

The High Court stated that before ordering DNA testing, courts must weigh “pros and cons” and apply the test of “eminent need”—i.e., whether truth cannot be reached without such testing. On the admitted facts and the strength of the statutory presumption, the Court concluded there was no such necessity.

3.2.5 Limited Interference under Section 528 BNSS / Section 482 Cr.P.C. Principles

Although styled under Section 528 BNSS (and noted as corresponding to inherent jurisdiction), the High Court effectively treated the challenge as one seeking interference with a discretionary interlocutory order. Finding the Family Court’s approach consistent with the governing Supreme Court precedent and statutory presumption, it declined to substitute its view.

3.3 Impact

3.3.1 On Maintenance Litigation Strategy

The order reinforces that paternity disputes raised in Section 125 proceedings must cross a high threshold before a DNA test will be ordered. Applications premised on suspicion, marital discord, or tactical avoidance of maintenance are unlikely to succeed without credible material showing non-access.

3.3.2 On the Use of BSA, 2023 in Family Courts

The judgment is practically significant for its explicit linkage of the traditional presumption under Section 112 of the Evidence Act to its new statutory home under Section 116 BSA, 2023, signaling continuity in doctrine despite legislative transition.

3.3.3 Child-Centric Protective Function

By emphasizing stigma and the child’s status, the decision strengthens a child-protective approach: courts should not expose minors to legitimacy challenges unless legally unavoidable and well-founded.

4. Complex Concepts Simplified

Section 125 Cr.P.C. (Maintenance)
A summary remedy to prevent destitution by ordering maintenance to a पत्नी/wife, child, or parents. It is not a full-fledged civil trial, but courts can decide incidental issues (including paternity) when necessary.
Presumption of legitimacy (Section 116 BSA / Section 112 Evidence Act)
If a child is born during a valid marriage, the law presumes the husband is the father. This presumption can be rebutted only by proving non-access—i.e., no opportunity for sexual intercourse during the relevant period.
Access / Non-access
“Access” means opportunity for sexual relations; it does not require proof of living together continuously. “Non-access” means no such opportunity at all.
DNA test not as a matter of course
Courts do not order DNA tests merely because a party asks. There must be a strong reason grounded in law and evidence, especially because of privacy and stigma concerns.
Roving inquiry
A speculative investigation launched without solid foundational facts—courts avoid permitting this, particularly when it can harm a child’s status.
Section 528 BNSS / Section 482 Cr.P.C. (Inherent jurisdiction)
A High Court’s power to prevent abuse of process and secure justice, typically exercised sparingly, especially against discretionary interlocutory orders.

5. Conclusion

The Karnataka High Court’s decision affirms a clear rule: in Section 125 maintenance proceedings, a DNA test to dispute paternity will not be ordered routinely. Where marriage and some cohabitation are admitted, the presumption of legitimacy under Section 116 BSA holds the field, and the husband must present a strong prima facie case of non-access to justify intrusive genetic testing.

By aligning its reasoning with Goutam Kundu v. State of W.B. and emphasizing the “eminent need” threshold and the stigma to the child, the Court reinforces continuity in Indian legitimacy jurisprudence under the new evidentiary code and discourages strategic paternity challenges aimed at evading maintenance.