SC balances child’s right to know paternity and alleged father’s right to privacy

The Supreme Court in a ruling last week upheld the use of DNA test in a long-running paternity dispute, addressing the complex question of whether an individual’s right to privacy overrides the need to determine parentage.

Earlier, the top court had consistently held in various judgments that DNA tests should not be ordered routinely, but there has never been a conclusive answer to when they should be permitted.

Paternity cases largely revolved around the concerns of legitimacy and the need to avoid illegitimising children. However, after the Supreme Court’s landmark decision of Justice K.S. Puttaswamy v. Union of India in 2017 which ruled that the right to privacy is a fundamental right under Article 21 of the Constitution, the court has continuously ruled that compulsory DNA testing interferes with an individual’s right to privacy and bodily autonomy.

In the present case, Justice Sanjay Karol and N. Kotiswar Singh upheld the trial court order directing a DNA test to prove paternity. The alleged father, appellant in this matter, approached the court to overturn the trial order.

In addition to this, there is Section 112 of the Evidence Act 1872 (Section 116 of the Bharatiya Sakshya Adhiniyam), which states that a child is presumed to be legitimate unless the party disputing paternity proves that there was non-access for the relevant period of the marriage and it is upon the alleged father to prove the non-access.

The legal footprint

If we look into a series of older cases, the court has pulled back from using the DNA test to prove paternity. Especially since the above said section was enacted in 1872, when there was no scientific means to determine paternity. However, the DNA testing method became commercially available in India by the 1980s.

In Kunhiraman v. Manoj, the Kerala High Court in 1991 accepted the results of a DNA paternity test after a magistrate had ordered its use to determine paternity. IN this particular case, Section 112 was not applicable as there was no legal marriage between the parties.

In 1993, in the case of Goutam Kundu v. State of West Bengal, the top court rejected the use of blood testing which is a much older method, to prove paternity, as the court ruled that Section 112’s burden of proof on the husband was far stronger, and a blood test could not be the first resort. It would first require the husband to make a prima facie case of “non-access”.

In 2005, in the case of Banarsi Dass v Teeku Dutta, the Supreme Court upheld the high court’s decision, refusing to order a DNA test. It ruled that DNA testing is “not to be directed as a matter of routine”.

In 2014, the Supreme Court gave a wider interpretation in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik holding that “in our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former”.

N.D Tiwari case

In the same year, the N.D. Tiwari paternity row was highly publicised in which veteran politician Narayan Dutt Tiwari was compelled to take a DNA test that proved he was the biological father of Rohit Shekhar. The long drawn-out six-year case established a significant legal precedent regarding privacy, scientific evidence, and the rights of children born out of wedlock. Though Tiwari strongly argued that his right to privacy was violated, both the Delhi High Court and the Supreme Court ordered for the test.

However in January 2025, in the case of Ivan Rathinam v Milan Joseph, the top court held that a child’s legitimate interest to know the biological parent must be balanced by the potential father’s right to protect his privacy and dignity. Thus, the court observed that “on one hand, courts must protect the parties’ rights to privacy and dignity by evaluating whether the social stigma from one of them being declared ‘illegitimate’ would cause them disproportionate harm. On the other hand, courts must assess the child’s legitimate interest in knowing his biological father and whether there is an eminent need for a DNA test.”

In the present case, neither the court gave an unrestricted right to the child to demand DNA testing nor abandon the alleged father’s right to privacy, but rather held that in the domain of right to privacy, it wants to balance the interests of the alleged father’s privacy with that of the child’s desire for closure on a question that has loomed large on his life.