A DNA test may be ordered only when (i) existing evidence is insufficient to determine the truth, and (ii) on a balancing of interests (eminent need/proportionality) the intrusion into bodily privacy and dignity is justified; where a child is born during a subsisting marriage, the conclusive presumption under Section 112 Evidence Act stands unless rebutted by strong, unambiguous evidence of non‑access, and in absence of such rebuttal a court must not compel DNA testing that would disproportionately invade privacy or lack a direct nexus to the offences alleged

2025 INSC 1304

R. RAJENDRAN

KAMAR NISHA AND OTHERS

PRASHANT KUMAR MISHRA, J.

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1013 OF 2021

J U D G M E N T

(Full judgment reproduced and summarised below)

HEADNOTES

1. Criminal Procedure — DNA profiling — Power to direct — exceptional, not routine — Court must satisfy two preconditions before directing DNA test: (i) insufficiency of existing evidence to reach truth; and (ii) positive balance of interests in favour of testing (eminent need and proportionality). DNA test cannot be ordered for fishing investigations or where privacy and bodily autonomy outweigh investigative benefit. (Paras 27–31, 43–49, 55–57)

2. Evidence — Section 112 Indian Evidence Act, 1872 — Birth during marriage conclusive proof of legitimacy; presumption of paternity survives unless rebutted by strong, unambiguous evidence establishing non‑access during the period of conception. The standard to rebut Section 112 is higher than preponderance of probabilities but lower than criminal standard; it must exclude reasonable possibility of husband being the father. (Paras 22–26, 33–36)

3. Right to privacy & bodily autonomy — Constitutional protection under Article 21 requires any intrusion (such as compelled DNA testing) to satisfy legality, legitimate aim, and proportionality. Consent by one party does not waive privacy rights of others. Child’s best interests and dignity are paramount (particularly when minor). (Paras 46–49, 51–52)

4. Adverse inference — An adverse inference under Section 114(g)/(h) Evidence Act cannot be drawn from refusal to submit to DNA testing unless prerequisites for ordering test are first satisfied and presumption under Section 112 is effectively rebutted. (Paras 50–51)

5. Nexus with offence — Medical examination provisions in CrPC (Sections 53/53A) permit collection of biological material only when examination has a proximate and demonstrable nexus with the offences under investigation. Absent such nexus, compelling DNA profiling is disproportionate and impermissible. (Paras 55–57)

6. Conclusion/Order — High Court direction ordering appellant to undergo DNA profiling set aside; appeal allowed. (Paras 58–61)

FACTUAL SUMMARY 

1. Parties & background: Respondent No.1 (Kamar Nisha) married Abdul Latheef in 2001. Doctor-appellant R. Rajendran treated Latheef and subsequently allegedly had an extramarital relationship with respondent No.1, resulting in birth of a child on 08.03.2007.

2. Allegations & FIR: Respondent No.1 publicly narrated her grievance in 2014 leading to FIR No.233/2014 alleging cheating and fraud (Sections 417, 420 IPC) and offences under Tamil Nadu Women Harassment Act; police sought DNA profiling of appellant, respondent No.1 and the child; appellant resisted.

3. Procedural history: Multiple writ petitions and appeals in Madras High Court. Single Judge ordered DNA profiling; Division Bench remanded for hearing; Single Judge again ordered DNA profiling on 24.04.2017; Division Bench (10.05.2017) directed appellant to submit blood samples by 19.05.2017. Appeal to this Court followed.

ISSUES

1. Whether the High Court was justified in directing compulsory DNA profiling of the appellant (and others) to assist criminal investigation.

2. Whether the presumption under Section 112 Evidence Act was rebutted so as to permit ordering of DNA test.

3. Whether privacy, bodily autonomy and best interests (especially of the child) preclude the order.

KEY REASONS, FINDINGS & HOLDING 

A. On Section 112 and Burden to Rebut

1. Section 112 creates a conclusive statutory presumption of legitimacy for a person born during a valid marriage; it can be displaced only by strong, affirmative evidence that the spouses had no access when the child could have been begotten. The standard to rebut is higher than mere preponderance but lower than criminal proof — it must effectively exclude possibility of husband’s paternity. (Paras 22–26, 33–36)

2. In the present case, the child was born during the subsistence of marriage (2001) and official records (birth certificate, school records) consistently name Abdul Latheef as father. Respondent No.1 did not plead or prove non‑access of Latheef at the relevant time. Thus, presumption under Section 112 remains unrebutted. (Paras 35–38)

B. On DNA Testing Principles and Privacy

3. DNA testing is an intrusive measure impacting privacy and bodily integrity. Precedent requires DNA testing to be ordered only where (i) evidence before court is insufficient to reach truth and (ii) balance of interests favours testing (eminent need, proportionality). (Paras 27–31, 43–44)

4. The twin-blockade test (Ivan Rathinam) — insufficiency of evidence; and positive balance of interests — is not satisfied here. Existing evidence is not insufficient: statutory presumption stands and documentary records support paternity. No pleading or material of non‑access was placed. (Paras 43–45)

5. Consent by one party does not waive privacy rights of others (appellant and child). Ordering compelled DNA test would impinge Article 21 rights and fails the tripartite test of legality, legitimate aim and proportionality (Puttaswamy). The potential harm to dignity and privacy outweighs investigative benefit. (Paras 46–49)

C. On Nexus with Offence & CrPC Provisions

6. Sections 53 and 53A CrPC permit medical examination and collection of biological samples where such examination has a proximate nexus to the offence. In the present case, the alleged offences (cheating/harassment) do not by necessity require paternity determination; DNA testing lacks directness and proportionality vis-à-vis the alleged crime. (Paras 55–57)

D. On Adverse Inference

7. Drawing adverse inference under Section 114 Evidence Act from refusal to undergo DNA testing presupposes that a DNA test order was rightly made; absent that, no such inference can be drawn at the stage of deciding whether test should be ordered. (Paras 50–51)

Conclusion & Disposition

8. High Court’s direction (10.05.2017) compelling appellant to submit to DNA profiling is set aside. Impugned order is quashed; appeal allowed. (Paras 58–61)

RATIO DECIDENDI 

A DNA test may be ordered only when (i) existing evidence is insufficient to determine the truth, and (ii) on a balancing of interests (eminent need/proportionality) the intrusion into bodily privacy and dignity is justified; where a child is born during a subsisting marriage, the conclusive presumption under Section 112 Evidence Act stands unless rebutted by strong, unambiguous evidence of non‑access, and in absence of such rebuttal a court must not compel DNA testing that would disproportionately invade privacy or lack a direct nexus to the offences alleged.

OPERATIVE ORDER 

The impugned judgment dated 10.05.2017 passed by the Division Bench of the Madras High Court in Writ Appeal (MD) No.521 of 2017 is set aside. The criminal appeal is allowed.