Holding

A court may not order a DNA test in a maintenance suit without the consent of the adult child and without a strong prima facie case, as it would violate the right to privacy and the presumption of legitimacy under Section 112.

Summary

The petitioner (defendant) challenged a Family Court order directing him to undergo a DNA test to establish paternity of a now‑adult daughter, arguing that the order was illegal, unnecessary and violated privacy. The suit, originally filed in 1994 under the Hindu Adoption and Maintenance Act, sought maintenance for the wife and her minor daughter, but the wife had not proved her marriage before seeking the DNA test in 2010. The Court noted that the daughter was now a major, married, and could no longer claim maintenance, and that the DNA test was ordered without her consent, infringing her right to privacy. Applying principles from Supreme Court judgments on DNA testing, the presumption of legitimacy under Section 112 Evidence Act, and the proportionality test under the right to privacy, the Court held that the order was not justified. Consequently, the petition was allowed, the Family Court order was quashed, and the application for DNA testing dismissed. The Court directed the Family Court to complete the pending suit proceedings without expressing any view on the paternity issue.

Issues considered

The legality of directing a party to undergo a DNA test without consent in a maintenance suit.
Whether the presumption of legitimacy under Section 112 of the Indian Evidence Act can be displaced without a prima facie case.
Whether ordering a DNA test infringes the constitutional right to privacy and personal liberty.
The relevance of the passage of time and the adult status of the child to the necessity of a DNA test.

Legislation cited

Code of Civil Procedure, 1908s. 151, s. O 26 R 10, s. O 26 R 9
Hindu Adoption and Maintenance Act, 1956s. 20
Indian Evidence Act, 1872s. 112, s. 45

Subjects

maintenanceDNA testingright to privacypaternitySection 112 Evidence ActFamily CourtCivil ProcedureHindu Adoption and Maintenance Act

Judgment

C/SCA/8340/2012 CAV JUDGMENT DATED: 23/07/2026

Reserved On : 16/07/2026
Pronounced On : 23/07/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 8340 of 2012

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI

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Approved for Reporting Yes No

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YESHWANTSINH SHANKARSINH CHAUHAN
Versus
MADHUKANTA @ YESHMITA D/O LATE MADHAVSINH RAISINH JADAV &
ANR.
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Appearance:
MR RD DAVE(264) for the Petitioner
MR NIRAV THAKKAR for MR BHAVIN J SATWARA(3718) for the
Respondents
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

CAV JUDGMENT

1. The petitioner calls in question legality and validity of
impugned order dated 11.5.2012 passed by the learned
Family Court, Vadodara below application Exh.217 in Family
(HMP) Suit No.1532 of 2010 (Old Special Civil Suit No.485 of
1994), whereby the learned Family Court allowed said
application filed by the respondent wife.

2. For the sake of convenience and brevity, parties are

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referred to as per their original status before the learned trial
Court.

3. Brief facts of the case are as under:-

3.1 Special Civil Suit No. 485 of 1994 was filed by the
plaintiff No.1 under the provisions of the Hindu Adoption and
Maintenance Act, 1956 seeking maintenance for herself and
for her minor daughter – respondent No.2 from the defendant.
The suit was subsequently transferred to the Family Court
and re-registered as Family Suit No. 1532 of 2010.

3.2 In the course of the suit proceedings, plaintiff No.1 filed
an application below Exh.217 seeking a direction to the
defendant to undergo a blood test for the purpose of a DNA
examination, so as to determine the paternity of Respondent
No. 2, and further seeking a direction that the defendant
remain present at the Forensic Science Laboratory,
Gandhinagar to facilitate the DNA test. The application was
stated to have been filed under O 26 R 9 & 10 read with
Section 151 of the Code of Civil Procedure, 1908, along with
Section 45 of the Indian Evidence Act.

3.3 The learned Family Court directed the defendant to
appear before one of any branch of Toprani Laboratory,
Vadodara on 25.5.2012 at 10:00 hours, or at such time as may
be intimated by the laboratory to provide a blood sample for
the DNA test. The laboratory was directed to forward the
sample to the Forensic Science Laboratory, Gandhinagar, for

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DNA examination. The learned Family Court further directed
that, in the event the defendant failed to remain present
before the laboratory and provide the blood sample, an
adverse inference would be drawn against him.

3.4 By filing the suit, plaintiff No.1 has claimed to be the
legally wedded wife of the defendant. Respondent No. 2 was
barely fifteen months old at the time of filing of the suit, and is
stated to have been born out of the conjugal relationship
between plaintiff No.1 and the defendant. In the course of the
suit, plaintiff No.1 also filed an application for interim
maintenance, which was granted by the learned Family Court.
This order of granting interim maintenance was challenged
before this Court by the defendant by way of filing CRA
Nos.1232 of 1995 and 1946 of 1996, whereby the coordinate
Bench of this Court dismissed those proceedings and directed
the learned Civil Judge to expeditiously decide the suit and
further directed that the suit be disposed of by the end of
December 1998.

3.5 It is against this background that, on 6.1.2010, plaintiff
No.1 filed the application below Exh.217, seeking the relief in
the aforesaid terms.

3.6 The learned Family Court as stated above by impugned
order, allowed the application below Exh.217

3.7 Hence, present petition.

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4. Heard learned advocate Mr. RD Dave for the petitioner -
defendant and learned advocate Mr. Nirav Thakkar with
learned advocate Mr. Bhavin J. Satwara for the respondents
plaintiffs.

5. Learned advocate Mr RD Dave for the defendant would
submit that at the time of filing of Special Civil Suit No. 485 of
1994, Respondent No. 2 was barely fifteen months old and as
of now, she is more than 30 years of age and settled in USA.
In view of such subsequent development, learned advocate
Mr. Dave would submit that in view of Section 20 of the Hindu
Adoption and Maintenance Act, a major daughter is not
entitled to claim maintenance from her father, even if it is to
be accepted that Respondent No. 2 is the defendant's
daughter. It was accordingly submitted that the relief claimed
on behalf of Respondent No. 2 in the suit has become
infructuous on subsequent development, and that there is
consequently no imminent need to determine her paternity.
He would further submit that the Coordinate Bench of this
Court vide order dated 11.9.2012, stayed the impugned order.

5.1 Learned advocate Mr. RD Dave would submit that in the
reply to the suit, the defendant had raised the contention that
Plaintiff is not his legally wedded wife, and that Respondent
No. 2 was not born out of any relationship between the
parties. He would further submit that the suit filed in the year
1994 was directed to be concluded before December, 1998,
however, instead of cooperating to the learned trial Court in
the expeditious disposal of the suit, plaintiff No.1 filed an

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application to prolong the proceedings. He would further
submit that since the defendant had contended that Plaintiff is
not his legally wedded wife and that Respondent No. 2 was
not born of any relationship between the parties, plaintiff No.1
was first required to prove that she is the defendant's legally
wedded wife before any other question including that of the
paternity of Respondent No. 2 could arise. It was further
submitted that plaintiff No.1 did not participate in the
proceedings till filing of Exh.217 application, after which the
proceedings were restarted, whereby, she could not
straightaway seek the relief of a DNA test to establish that
Respondent No. 2 is a child born of a marital relationship
between herself and the defendant. The plaintiff No.1 was
required to lead evidence to establish factum of marriage
first. Issue of paternity of respondent No.2 comes only
thereafter. Reliance in this regard was placed on the
judgment of the Hon’ble Apex Court in case of Ashok Kumar
v. Raj Gupta, (2022) 1 SCC 20 on the question of the weight
to be given to the timing of filing of such an application, more
particularly, para 13 thereof, which reads as under:-

“13. DNA is unique to an individual (barring twins)
and can be used to identify a person's identity, trace
familial linkages or even reveal sensitive health
information. Whether a person can be compelled to
provide a sample for DNA in such matters can also be
answered considering the test of proportionality laid
down in the unanimous decision of this Court in K.S
Puttaswamy v. Union of India, 2019 (1) SCC 1
wherein the right to privacy has been declared a
constitutionally protected right in India. The Court
should therefore examine the proportionality of the
legitimate aims being pursued, i.e whether the same

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are not arbitrary or discriminatory, whether they may
have an adverse impact on the person and that they
justify the encroachment upon the privacy and
personal autonomy of the person, being subjected to
the DNA Test. It cannot be overlooked that in the
present case, the application to subject the Plaintiff to
a DNA Test is in a declaratory suit and the plaintiff
has already adduced evidence and is not interested to
produce additional evidence (DNA), to prove his case.
It is now the turn of the defendants to adduce their
evidence. At this stage, they are asking for subjecting
the plaintiff to a DNA test. Questioning the timing of
the application the trial Court dismissed the
defendants application and we feel that it was the
correct order."

5.2 Reliance was further placed on Rahul v. State of Delhi,
(2023) 1 SCC 83, more particularly para 36 to 40, for the
submission that the evidentiary value of DNA evidence is akin
to any other evidence, and that its probative value varies from
case to case. Lastly, reliance was placed on a medical
certificate issued by Dr. Vijay Thakore of Aadicura
Superspeciality Hospital to submit that as of now, the
defendant is 78 years old and suffers from left lower-limb
critical limb CLI with foot gangrene, hypotension, diabetes
mellitus type 2, and COPD etc. and that he has undergone
surgical amputation of the left leg below the knee with a long
myocutaneous flap. It was submitted that, in these
circumstances, directing the defendant to undergo a DNA test
would be atrocious to his physical condition, particularly since
the relief claimed on behalf of Respondent No. 2 has, in any
event, become infructuous.

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5.3 Upon above submissions, learned advocate Mr. RD Dave
prays to allow this petition by quashing and setting aside the
impugned order.

6. On the other hand, learned advocate Mr. Nirav Thakkar
along with learned advocate Mr. Bhavin J. Satwara for the
plaintiff No.1, refers to Section 112 of the Indian Evidence Act
and submits that the birth of a person during the continuance
of a valid marriage between his mother and any man, or
within two hundred and eighty days after its dissolution (the
mother remaining unmarried), is conclusive proof that he is
the legitimate son of that man, unless it is shown that the
parties to the marriage had no access to each other at the
time when he could have been begotten. He would further
submit that a DNA test, being a scientifically proven method,
prevails over the presumption of conclusive proof under
Section 112 of the Evidence Act, since that provision was
enacted at a time when modern scientific advancements,
including DNA testing, were not within the contemplation of
the legislature, and that the result of a DNA test is
scientifically accurate. He would further submit that while
ordinarily a wife may be reluctant to subject herself or her
child to a DNA test, the present case has diagonally opposite
situation, in which plaintiff No.1 herself seeks the DNA test to
establish that Respondent No. 2 is born of her relationship
with the defendant, and that the defendant's refusal to
undergo the test, and the filing of the present petition,
indicate that he is seeking to avoid a test that would expose
the true position. It was further submitted that, if necessary,

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the sample need not be collected by private laboratory and
that any government hospital may instead collect the samples
from the defendant and Respondent No. 2 to ascertain
paternity.

6.1 Learned advocate Mr. Nirav Thakkar would further
submit that with the advancement of technology, a blood
sample is no longer necessary, and that even a single hair
strand could be suffice to produce a DNA result; it was
accordingly submitted that the order of the learned Family
Court is just, correct, and appropriate. It was further
submitted that, while a direction to undergo a DNA test
ordinarily impinges upon the privacy of a person, where the
issue of paternity is squarely raised, a DNA test constitutes
conclusive evidence and ought to be ordered. Thus, the order
passed by the learned Family Court is proper and correct and
requires no interference.

6.2 In support of his submissions, learned advocate Mr.
Nirav Thakkar pressed into service following authorities of the
Hon’ble Apex Court.

(1) Dipanwita Roy Vs. Ronobroto Roy, (2015) 1 SCC 365

(2) Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and
another, (2014) 2 SCC 576

(3) Sharda Vs. Dharmpal, (2003) 4 SCC 493

6.3 Upon above submissions, learned advocate Mr. Nirav
Thakkar prays to dismiss the petition.

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7. I have heard learned advocates for both the parties and
considered the issue in dispute.

8. Firstly, let me observe that it is a case where the plaintiff
No.1 had sought only maintenance from the defendant for
herself and for Respondent No. 2. The suit was filed in the
year 1994, at which time Respondent No. 2 was barely fifteen
months old. A coordinate Bench of this Court, while disposing
of the earlier civil revision applications directed that the suit
be disposed of by the end of December 1998. Admittedly,
until the filing of the application below Exh.217, the plaintiff
No.1 did not enter the witness box to prove the contentions
raised in the suit. As of the present date, Respondent No. 2 is
stated to be 32 years old and is informed that she is married
and residing in the USA. Having received information from
unverified source, a further submission that she has also had
a child is made.

9. At this juncture, this Court notes that at the time of
issuance of direction for the DNA test was passed,
Respondent No. 2 was a minor, and that her consent to the
test was never obtained. It was plaintiff No.1, her mother, who
approached the Court seeking a determination of Respondent
No. 2's paternity; Respondent No. 2, now a major, has at no
stage herself appeared before the Court to seek that her
paternity be determined by way of a DNA test.

10. As per the judgment of Ashok Kumar (supra), DNA is

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unique to an individual and can be used to establish identity,
trace familial linkage, and reveal sensitive health information,
and that whether a person may be compelled to provide a
DNA sample must be examined applying the test of
proportionality laid down by the Hon’ble Apex Court in case of
K.S Puttaswamy v. Union of India, 2019 (1) SCC 1, in which
the right to privacy was declared to be a constitutionally
protected right in India. It was observed that the Court must
examine the proportionality of the legitimate aim being
pursued, whether the direction is arbitrary or discriminatory,
whether it would have an adverse impact on the person
concerned, and whether the encroachment upon the privacy
and personal autonomy of the person directed to undergo the
test is justified.

11. In the present case, it cannot be overlooked that the
application to subject the parties, including the minor (now
major) Respondent No. 2, to a DNA test arises in a suit for
maintenance under the Hindu Adoption and Maintenance Act,
in which Respondent No. 2 has since become a major and has
married, lost her right to get maintenance.

12. The plaintiff No.1 had not adduced any evidence of her
marriage to the defendant prior to filing the application. Apt
to note that the direction for the DNA test was made without
obtaining the consent of Respondent No. 2. In view of that,
her right to privacy is accordingly under threat, having been
ordered without her consent. It is thus, observed that such a
direction infringes the right to privacy of the individual

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concerned (respondent No.2) and may carry significant
societal consequences.

13. Worthy reliance is placed upon the judgment of the
Hon’ble Apex Court in case of R. Rajendran Vs. Kamar
Nisha and others, 2025 LiveLaw (SC) 1086 in which the
Hon’ble Apex Court laid down the principles governing DNA
profiling, including that a court should not direct parties to
undergo a DNA test as a matter of course or in a routine
manner. Para 27 to 32 are relevant, which reads as under:-

“27. The next aspect of the matter that requires
consideration is whether the appellant can be
subjected to DNA profiling to determine whether he
is the biological father of the child born to respondent
No.1. It becomes imperative for this Court to examine
the legal framework governing the DNA testing and
its permissible scope, particularly in light of
presumption in favour of legitimacy enshrined under
Section 112 of the Evidence Act.
28. This Court has consistently held that DNA testing
cannot be ordered as a matter of course and must be
subject to stringent safeguards to protect the dignity
of individuals and the legitimacy of children born
during the wedlock. The power to direct such tests
must be exercised with utmost circumspection and
only when the interests of justice imperatively
demand such an intrusive procedure. Courts must
remain vigilant against fishing inquiries
masquerading as legitimate requests for scientific
evidence, ensuring the sanctity of family relationships
is not compromised by speculative or exploratory
investigations.
29. The foundational parameters governing such
directions were established in Goutam
Kundu (supra) wherein this Court laid down the
following parameters :

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"26. From the above discussion it emerges-1.
that courts in India cannot order blood test as a
matter of course;
2. wherever applications are made for such
prayers in order to have roving inquiry, the
prayer for blood test cannot be entertained.
3. There must be a strong prima facie case in
that the husband must establish non-access in
order to dispel the presumption arising under
Section 112 of the Evidence Act.
4. The court must carefully examine as to what
would be the consequence of ordering the blood
test; whether it will have the effect of branding
a child as a bastard and the mother as an
unchaste woman.
5. No one can be compelled to give sample of
blood for analysis."
30. Following the principles laid down in Goutam
Kundu (supra), the approach to ordering DNA tests
has been further refined in subsequent decisions.
In Sharda vs. Dharmpal [9] it was observed:
"81. To sum up, our conclusions are:
1. A matrimonial court has the power to order a
person to undergo medical test.
2. Passing of such an order by the court would
not be in violation of the right to personal
liberty under Article 21 of the Indian
Constitution.
3. However, the court should exercise such a
power if the applicant has a strong prima facie
case and there is sufficient material before the
court. If despite the order of the court, the
respondent refuses to submit himself to medical
examination, the court will be entitled to draw
an adverse inference against him."
[9] (2003) 4 SCC 493
31. This Court in the case of Bhabani Prasad Jena vs.
Convenor Secretary, Orissa State Commission for
Women and Another [10] held thus:

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"21. In a matter where paternity of a child is in
issue before the Court, the use of DNA test is an
extremely delicate and sensitive aspect. One
view is that when modern science gives the
means of ascertaining the paternity of a child,
there should not be any hesitation to use those
means whenever the occasion requires. The
other view is that the Court must be reluctant in
the use of such scientific advances and tools
which result in invasion of right to privacy of an
individual and may not only be prejudicial to the
rights of the parties but may have devastating
effect on the child. Sometimes the result of such
scientific test may bastardise an innocent child
even though his mother and her spouse were
living together during the time of conception.
22. In our view, when there is apparent conflict
between the right to privacy of a person not to
submit himself forcibly to medical examination
and duty of the Court to reach the truth, the
Court must exercise its discretion only after
balancing the interests of the parties and on due
consideration whether for a just decision in the
matter, DNA test is eminently needed. DNA test
in a matter relating to paternity of a child
should not be directed by the Court as a matter
of course or in a routine manner, whenever such
a request is made. The Court has to consider
diverse aspects including presumption under
Section 112 of the Evidence Act; pros and cons
of such order and the test of "eminent need"
whether it is not possible for the Court to reach
the truth without use of such test."
[10] (2010) 8 SCC 633
32. We must now consider whether respondent No.1
has successfully displaced the presumption of
legitimacy under Section 112 of the Evidence Act by
proving non-access, so as to warrant the ordering of a
DNA test.”

14. Let me observe that the learned Family Court, instead of

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applying aforesaid principles, had directed the parties to
undergo the DNA test in a routine manner, thereby placing
Respondent No. 2's right to privacy at stake, that too without
taking her consent.

15. On the question of timing, apposite to observe that
plaintiff No.1 was first required to prove her marriage with
the defendant before raising the issue of the paternity of
Respondent No. 2. Further that the suit proceedings were
required to have concluded by December 1998. Instead, the
application concerning paternity was filed only in 2010
without plaintiff No.1 having entered into the witness box or
to lead any other evidence. Nonetheless, the exercise to
decide paterntiy of respondent No.2 became redundant as she
is now major and married daughter and she now cannot claim
maintenance from her father. Moreover, now practically, no
DNA test can be ordered without taking consent of
respondent No.2, as result of DNA test practically has direct
bearing upon the respondent No.2 to societal status.

16. As far as judgments relied upon by learned advocate for
the plaintiff No.1 is concerned, they are factually
distinguishable and rendered no assistance to the case of the
plaintiffs.

17. For the foregoing reasons, present petition is hereby
allowed. Impugned order dated 11.5.2012 passed by the
learned Family Court, Vadodara below application Exh.217 in
Family (HMP) Suit No.1532 of 2010 (Old Special Civil Suit

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No.485 of 1994) is hereby quashed and set aside.
Consequently, application Exh.217 is hereby dismissed.

18. The learned Family Court is directed to go through the
orders passed in the CRAs and to complete the suit
proceedings.

19. Needless to state that this Court has not expressed any
opinion on merits and demerits of the case between the
parties and has not expressed anything on the issue of
paternity of respondent No.2.

(J. C. DOSHI,J)
SHEKHAR P. BARVE

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 23/07/2026 13:37:14

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