5 min readLucknowMay 6, 2026 03:31 AM IST
The Allahabad High Court has rejected the application of a married woman for conducting a DNA test for the determination of the paternity of her minor son in order to seek maintenance from a man she allegedly was in an extra-marital relation with.
The woman’s husband separated from her and filed divorce petition after obtaining a DNA test report reportedly disclosing he was not the biological father of the child.
A single bench of Justice Nand Prabha Shukla, in a May 4 order, stated, “It is an admitted fact that the child was born during the subsistence of the valid marriage of the couple. Both remained together until the husband separated himself after procuring the DNA test report and filing the divorce petition which is still pending. It is obvious that both had access throughout their marriage. Even if it is presumed that the wife developed an extramarital relationship with the other person especially when the child was born, such a fact, per se, would not be sufficient to displace the presumption of legitimacy.”
It added, “It seems that the husband and the other person, both, had simultaneous access. There being a statutory mandate, the child shall be presumed to be the son of the woman’s husband.”
In the judgement, the bench cited a recent Supreme Court order which states…. “The law favours legitimacy and frowns upon the illegitimacy and that Section 112 of the Indian Evidence Act stands as a bulwark against the casual illegitimization of children on the strength of unsubstantiated allegations or mere suspicion.”
The woman had approached the High Court seeking to quash the January 19 order of the Additional Principal Judge, Family Court, Agra, rejecting her application for determination of the paternity of her son through DNA test.
She was seeking maintenance from the man she allegedly was in a relationship with.
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According to the court order, “The facts relevant to deal with the controversy are that the marriage of the woman was solemnized in 2012 and two sons were born out of wedlock. In 2018-19, the wife allegedly came in contact with the other person and developed an extra-marital relationship. A son was born on July 12, 2020. The husband noticed the fact and went for the paternity test of himself and the begotten child and the DNA Test report dated July 28, 2020 disclosed that he is not the biological father of the child. The husband separated himself from the wife and moved a divorce petition on August 24.”
She filed an application on October 5 before the Principal Judge, Family Court, Agra, claiming maintenance for the minor son from the other man. The family court had rejected her application on the ground that there was no material available with regard to a live-in-relationship between her and the other man.
The HC bench in its order observed, “It is relevant to mention that admittedly the woman is the legally wedded wife and during the subsistence of the valid marriage, she developed an extra marital relationship with the other person who fathered the child. The birth of the child during the subsistence of valid marriage between the couple is the conclusive proof of legitimacy.”
It further cited the SC observations which stated… “It has been observed that if husband and wife were living together during the time of conception but the DNA test reveals that the child was not borne to the husband, the conclusiveness of the presumption of legitimacy of such child in law would remain irrebuttable. In such a situation, adultery may be proved on the part of the wife, the legitimacy of the child, would still be conclusive in law. The conclusive presumption of legitimacy of a child born during the subsistence of a valid marriage is that the child is that of the husband and it cannot be rebutted by a mere DNA test report. For rebuttal, there must be proof of non-access at the time when the child could have been begotten, ie, at the time of its conception.”
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Justice Shukla further stated, “Apex Court had held that DNA test in a matter relating to paternity of a child should not be directed by the Court as a matter of course or routine manner. Forcefully undergoing a DNA test would subject an individual’s private life to scrutiny from the outside world. That scrutiny, particularly when, concerning matters of infidelity, can be harsh and can eviscerate a person’s reputation and standing in society.”
