A man receives notice of a maintenance claim and answers in one line: the child is not mine, so I owe nothing. On the other side of the same dispute, a mother cannot recover a rupee unless she can show that the man she has named is actually the father. In both situations someone asks the court for a DNA test. In both situations the court's answer is rarely a simple yes.
If you are claiming maintenance for a child, or defending a claim by denying paternity, this is the ground you are standing on. A DNA test can establish biological fatherhood with near certainty, yet a court can refuse to order one even when it would resolve the dispute in an afternoon. The reason sits in a provision written in 1872 that still decides these cases today.
Two laws pulling in opposite directions
Maintenance for a wife and children comes from Section 125 of the Code of Criminal Procedure, 1973[1], now re-enacted as Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023[2]. A person who has sufficient means and neglects or refuses to maintain a wife unable to maintain herself, or a child unable to maintain itself, can be ordered to pay. It is a summary remedy meant to prevent destitution, and courts are supposed to decide it quickly.
Standing against that speed is Section 112 of the Indian Evidence Act, 1872[3], carried forward almost word for word into Section 116 of the Bharatiya Sakshya Adhiniyam, 2023[4]. The text is short and unforgiving.
The fact that any person was born 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, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
That is the collision. Maintenance asks who fathered the child. Section 112 answers that if the child was born inside a valid marriage, the law already treats the husband as the father, and you cannot prove otherwise except by one narrow route: showing that the spouses had no access to each other when the child could have been conceived.
Legitimacy is not the same thing as paternity
This distinction is where most confusion begins, and the Kerala High Court drew it cleanly in Babu v. R. Sunil Kumar[5]. Legitimacy is the legal status of a birth, whether the child was born within a valid marriage. Paternity is the biological fact of who the father is. The two answer different questions.
For maintenance, the court pointed out, legitimacy barely matters. Section 125 covers a legitimate or illegitimate child alike, so a child does not lose the right to support simply by being born outside a marriage. What the maintenance court actually needs to know is whether the child was begotten by the man from whom money is claimed. On that reasoning, the court held that Section 112 does not bar a DNA test in a maintenance case, because the presumption protects a child's legitimacy and not the separate factual question of biological fatherhood.
The line the court settled on is worth keeping in mind whichever side you are on.
The direction to a person, from whom maintenance is claimed, to submit himself for DNA test is legally permissible, in a maintenance claim under Section 125 of the Cr.P.C., in the cases where such a test is imminently needed to prove the paternity of the child which is denied by the alleged father. But, it cannot be ordered as a routine procedure.
The presumption you have to defeat first: non-access
Before a court will even order the test, the person disputing paternity has to get past Section 112, and the only door is non-access. In Aparna Ajinkya Firodia v. Ajinkya Arun Firodia[6], the Supreme Court explained what the word means. Access does not require proof of actual cohabitation. It means the existence, or non-existence, of an opportunity for a sexual relationship during the window when the child could have been conceived.
So a husband who wants to dislodge the presumption must prove that access was impossible, for example because of serious illness, impotency, or a clear separation that left no chance of a relationship in the relevant period. Drawing on the older guidelines in Goutam Kundu and Bhabani Prasad Jena, the Court restated the practical rule: a DNA test cannot be ordered as a matter of course, there must be a strong prima facie case, and the test should be directed only when it is eminently needed to reach the truth.
The blunt consequence, which trips up many litigants, is this. If no plea of non-access has been raised, a DNA test may not be directed at all. A bare denial of paternity, however loud, is not a plea of non-access, and the court will treat the presumption as standing.
Distinguishing Infidelity from Non-Access
At this stage, it is important to distinguish between allegations of infidelity and proof of non-access, as the two concepts are often incorrectly treated as synonymous. Even if allegations of an extramarital relationship are assumed to be true, they do not by themselves rebut the presumption under Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (which re-enacts, in substance, the earlier Section 112 of the Indian Evidence Act, 1872). The relevant inquiry is not whether another man may have had access to the mother, but whether the husband had no access during the period in which the child could have been conceived. Evidence creating suspicion about fidelity cannot be equated with evidence establishing non-access. In Ivan Rathinam v. Milan Joseph (2025 INSC 115), the Supreme Court—while interpreting Section 112 of the Indian Evidence Act, 1872, the predecessor provision now replaced by Section 116 of the BSA, 2023, and drawing on the earlier authority of Kamti Devi v. Poshi Ram (AIR 2001 SC 2226)—held that evidence pointing to other potential sexual partners does not negate the possibility of spousal access, and that allegations of an extra-marital affair alone are insufficient to displace the statutory presumption of legitimacy. Thus, suspicion of infidelity and proof of non-access operate in entirely different legal spheres, and failure to appreciate this distinction frequently leads to unsuccessful claims seeking DNA testing.
When an accurate test still loses
The strangest feature of this area is that a perfect DNA result does not automatically win. The tension was on full display in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik[7]. The test had already been carried out and showed that the husband was not the biological father. The wife relied on the conclusive presumption. The Court accepted that the child was born during a valid marriage, which on a plain reading made Section 112 apply, yet it held that where reliable scientific evidence collides with a presumption, the science should prevail, and it declined to fasten paternity and maintenance on the man.
That is not the last word, and you should know it before relying on it. In Aparna Ajinkya Firodia, the Court cautioned that even a genuine DNA result cannot escape the conclusiveness of Section 112 where access is not disproved[6]. If the spouses lived together when the child was conceived, a test showing the child is not the husband's would prove adultery, but the child would still be legitimate in law. The thread that reconciles the two positions is non-access. Where access existed, the presumption can hold even against the swab; where non-access is proved, the test becomes both permissible and decisive.
Privacy, the child, and the 2023 recalibration
Aparna Ajinkya Firodia did more than restate the old tests. It moved the child to the centre of the analysis. The Court held that a child's right not to have legitimacy questioned frivolously is part of the right to privacy[6]. A compelled test interferes with bodily integrity and with a child's interest in preserving identity and parentage. The Court was candid about the human cost: a finding of illegitimacy can leave a child confused, searching for a biological father, and carrying a lasting psychological burden. You can read the Supreme Court's reasoning reported on LiveLaw.
The same instinct drove Inayath Ali v. State of Telangana[8], where the Court refused to allow DNA testing of children born during a valid marriage because their paternity was not directly relevant to the offences alleged. Ordering the test in that situation, it held, would have violated the children's right to privacy and physical autonomy. The message for litigants is plain: courts now weigh the child's interests, not only the adults' convenience in proving a point.
The 2025 position and the standard of proof
The most recent guidance came in R. Rajendran v. Kamar Nisha[9]. A woman married since 2001 alleged that an affair with a doctor had produced a child, and a court directed the doctor to undergo DNA testing. The Supreme Court set that direction aside and, in doing so, fixed the standard of proof needed to displace the presumption.
The Court held that the standard sits between two familiar markers. It is higher than a mere preponderance of probabilities, but lower than proof beyond reasonable doubt. It must be rigorous enough to show there was no possibility the child was conceived through the husband. That intermediate threshold, the Court explained, prevents a child from being branded illegitimate on the strength of assertions, while also stopping the presumption from being weaponised to defeat a genuine claim. On the facts, the woman had not even specifically pleaded non-access for the relevant period, so the presumption stood and no test was warranted. The detailed coverage of the ruling shows how differently High Courts have sometimes leaned, with at least one stressing a father and child's right to know the truth, which is exactly why the Supreme Court keeps tightening the test.
What happens if a party refuses the test
Courts cannot strap anyone down and take a sample. In Badri Prasad Jharia v. Seeta Jharia[10], the Madhya Pradesh High Court, following the Supreme Court in Dipanwita Roy v. Ronobroto Roy, confirmed that a person cannot be compelled to undergo a DNA test, but a refusal can invite an adverse inference under Section 114 of the Evidence Act.
Do not read that as a shortcut. R. Rajendran added a limit that matters: an adverse inference cannot be drawn from a refusal until the presumption under Section 112 has first been displaced by positive evidence of non-access[9]. In other words, you cannot skip the hard work of proving non-access and hope the other side's refusal does it for you. Until the presumption is rebutted, the refusal carries no weight.
Practical guidance for both sides
If you are the mother claiming maintenance and the father denies paternity, your hurdle is not legitimacy. If the child was born during your marriage to him, Section 112 works in your favour and you may not need any test at all. If the child was born outside marriage, gather proof of the relationship, and remember that you can ask the court for a test where paternity is genuinely disputed and the test is imminently needed. Kerala courts have allowed exactly this in maintenance matters, both in Babu v. R. Sunil Kumar and in Saji Mathew v. Bindu[11].
If you are the man disputing paternity, understand that a denial alone will get you nowhere. You have to plead non-access specifically and back it with evidence for the conception window. The documents that actually move a court tend to be these:
Travel or posting records, passport stamps, or employer letters showing you were away during the period the child could have been conceived.
Medical records establishing serious illness or impotency that made a sexual relationship impossible.
Proof of separation, such as a judicial order, police complaint, or a separate residence, covering the relevant dates.
The marriage record and the child's birth certificate, which fix the dates the presumption turns on.
On forum and timing, a maintenance petition is filed before the Magistrate or, in many places, the Family Court. A DNA request inside it is an interlocutory step, so expect the test issue to be argued before the main maintenance order is passed, and expect appeals. Orders directing or refusing DNA tests are challenged up to the High Court and the Supreme Court with some regularity, which is why the cases above keep reaching the top of the system.
Common mistakes that cost people their case
Four errors recur. The first is treating a DNA test as automatic. It is not, and the gate is non-access, not suspicion. The second is confusing legitimacy with maintenance, when a child does not forfeit maintenance for being born outside a marriage. The third is banking on the other side's refusal, which counts for nothing until the presumption is first rebutted. The fourth is ignoring the child entirely, when courts now refuse tests whose only real effect would be to brand a child illegitimate.
Before you ask a court to settle paternity with a cheek swab, answer the question the law actually cares about first: was there access? That single fact, and not the laboratory, decides whether the test ever happens.
