No DNA Test Without Non-Access Plea: Jharkhand HC Dismisses Husband's Writ After Child Turns 24

The Jharkhand High Court refused to order a DNA test of a child born in 2002, holding that the husband's divorce plaint contained no plea of non-access to rebut the Section 112 presumption, and that the child—now 24 and not a party—cannot be compelled to submit to testing.

A husband's fourteen-year-old writ petition seeking a DNA test of a child born during his marriage has been dismissed by the High Court of Jharkhand at Ranchi. Justice Anubha Rawat Choudhary, sitting singly, upheld the order dated 17 December 2011 of the Principal Judge, Giridih, which had rejected the DNA test application in Title (Matrimonial) Suit No. 16 of 2008. The court found two independent grounds for refusal: the divorce plaint filed by the husband, Lakhan Kumar Mandal, contained no specific averment of non-access to his wife Foolmati Devi during the period the child could have been conceived, and the child—born on 1 June 2002—had attained majority during the pendency of the writ and was not a party to any of the proceedings.

The Dispute Before the High Court

Lakhan Kumar Mandal and Foolmati Devi were married on 12 July 2000. According to the husband's case, he left for Surat in January 2001 to work at a private firm and returned home on 3 May 2002. On visiting his wife's parental home, he found her in an advanced stage of pregnancy. A panchayat was convened on 5 May 2002, at which the wife and her parents allegedly accepted her fault. The child, Rahul, was born on 1 June 2002.

The husband filed a divorce suit in 2008—six years after the child's birth—on the sole ground of adultery under Section 13 of the Hindu Marriage Act, 1955. After four witnesses had been examined on his behalf, he filed a petition on 25 June 2010 seeking a DNA test of the child. In that petition, he stated for the first time that he had never cohabited with his wife between January 2001 and April 2002. The Principal Judge, Giridih, dismissed the DNA test petition on 17 December 2011. The husband challenged that order before the High Court by filing W.P. (C) No. 576 of 2012 on 1 February 2012.

The Legal Issue: Non-Access and Section 112

Section 112 of the Indian Evidence Act raises a conclusive presumption of legitimacy in favour of a child born during a valid marriage, unless it can be shown that the parties had no access to each other at the time the child could have been conceived. The central question before the High Court was whether the husband had made out a sufficient prima facie case—specifically, a plea of non-access—to justify directing a DNA test of the child.

The husband's counsel relied on three judgments. The Supreme Court's decision in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr., (2014) 2 SCC 576, was cited for the proposition that when scientific evidence is available, it must prevail over a statutory presumption. The Supreme Court's decision in Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365, was cited to argue that in a petition for dissolution of marriage alleging infidelity, Section 112 does not strictly apply because the paternity question is only incidental to the adultery ground. The Kerala High Court's judgment in 2021 SCC OnLine Ker 3458 was cited to argue that the child is not a necessary party in a divorce petition based on adultery, and that any finding on paternity would not bind the child.

The wife's counsel countered by relying on the Supreme Court's decision in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, (2024) 7 SCC 773. That judgment held that non-access must be proved as a fact in issue, that children have a right not to have their legitimacy questioned frivolously, and that a DNA test of a child should be directed only in exceptional and deserving cases. Counsel pointed out that no plea of non-access appeared anywhere in the divorce plaint, and that the assertion of continuous residence in Surat without cohabitation was introduced only in the DNA test petition filed after four witnesses had already been examined.

How the Court Reasoned

Justice Anubha Rawat Choudhary examined paragraphs 5 to 10 of the divorce plaint dated 7 June 2008 in detail. Those paragraphs stated that the husband went to Surat in January 2001, lived there till April 2002, returned on 3 May 2002, and found his wife pregnant. They alleged that the wife gave birth to a male child out of an illicit relationship on 1 June 2002, and that she continued to live in adultery thereafter.

The court found that nowhere in those paragraphs—or anywhere else in the plaint—did the husband state that he had no access to his wife, or that his wife had no access to him, during the period from January 2001 to April 2002. The assertion of non-cohabitation appeared only in the DNA test petition of 25 June 2010, filed after the plaintiff's fourth witness had been cross-examined. The court treated this as an improvement introduced at a late stage, unsupported by the foundational pleading in the main suit.

Applying Aparna Ajinkya Firodia, the court held that the absence of a non-access plea in the plaint meant no prima facie case had been made out to justify a DNA test. The court accepted the trial court's reasoning that “access” under Section 112 does not mean only actual marital intercourse but also the opportunity for sexual intercourse, and that the husband had failed to prove the absence of even that opportunity.

The court then addressed the child's current age as a separate and independent ground. The writ petition was filed in February 2012 and was admitted only in February 2021 after being adjourned on numerous occasions. By the time the matter was heard and decided, the child had attained majority and was approximately 24 years old. He was not a party to the divorce proceedings, the DNA test petition, or the writ petition. The husband had taken no steps to implead him after he turned 18.

The court reasoned that when the child was a minor, the mother as natural guardian could have given consent for a DNA test on his behalf. That authority had lapsed once the child attained majority. An order directing a DNA test would not be binding on the child as he was not a party. The mother could neither consent on his behalf nor compel him to comply. No adverse inference could be drawn against the mother if the adult child declined to submit to testing.

The court also noted the Kerala High Court's observation that a paternity finding in a divorce proceeding does not bind the child, who may establish his own paternity by appropriate proceedings on attaining majority. In the present case, however, that avenue had effectively been foreclosed: if a DNA test were now ordered and conducted, the child's independent right to establish his paternity on attaining majority would no longer arise in the same way, since he had already attained majority during the pendency of the writ.

On the question of whether the child was a necessary party, the court agreed with the Kerala High Court's reasoning that in a petition for dissolution of marriage on the ground of adultery, the child's presence is not necessary to adjudicate the relief claimed. The paternity question is only incidental. However, the court made clear that this principle did not assist the husband here, because the foundational requirement of a non-access plea had not been met in the first place.

The Precedents Distinguished

The court did not reject the propositions in Nandlal Wasudeo Badwaik or Dipanwita Roy as incorrect. It treated them as inapplicable on the facts. Both those cases proceeded on the basis that a prima facie case of non-access had been established. In the present case, the husband had not even pleaded non-access in his divorce petition. The court held that the Supreme Court's later decision in Aparna Ajinkya Firodia directly governed the situation: “no prima-facie case has been made out by the respondent which would justify a direction to conduct a DNA test.”

The court also noted that the DNA test petition filed in the criminal proceedings had been rejected by the Sub-Divisional Judicial Magistrate, Giridih, vide order dated 24 May 2007, and that Criminal Revision No. 91 of 2007 challenging that order was dismissed by the Sessions Judge, Giridih, on 3 September 2008. While those orders were in a different proceeding, they formed part of the factual backdrop considered by the trial court.

Outcome

Justice Anubha Rawat Choudhary dismissed W.P. (C) No. 576 of 2012 on 29 June 2026, holding that the impugned order dated 17 December 2011 of the Principal Judge, Giridih, called for no interference under Article 227 of the Constitution of India. All pending interlocutory applications were closed. A copy of the order was directed to be communicated to the court concerned by e-mail or fax.