A recurring defence in child maintenance proceedings is the demand for a DNA test: the respondent disputes paternity and insists that science settle it before he pays. Indian evidence law answers with a presumption older than the science — birth during a valid marriage is itself conclusive proof of legitimacy — and courts have built around it a disciplined framework in which DNA testing is the exception, ordered only when a foundation of non-access is laid and the child's interests are weighed. Understanding that framework is essential on both sides of a Section 144 BNSS petition in the Delhi Family Courts.
Why the law starts from a presumption
The presumption of legitimacy exists to protect children from the collateral damage of their parents' disputes. A maintenance case is about subsistence; the law refuses to let it become a paternity trial by default. Section 116 of the Bharatiya Sakshya Adhiniyam makes birth during a valid marriage conclusive proof of legitimacy — a category of proof that evidence cannot contradict — subject to a single statutory exception: proof that the spouses had no access to each other at any time when the child could have been begotten. "Access" means the existence of opportunity for marital relations, not proof that relations occurred.
The framework in maintenance proceedings
| Stage | What the court asks |
|---|---|
| Pleading | Has the respondent specifically pleaded non-access for the relevant period — separation, imprisonment, residence abroad — or merely denied paternity? |
| Foundation | Is there prima facie material of non-access? Travel records, separate residence, judicial orders. Without it, the Section 116 presumption applies and the test is refused. |
| Necessity | Is a DNA test eminently necessary, or can the issue be resolved on the existing evidence? The test is a last resort, not a shortcut. |
| Child's interest | What does the test do to the child's legitimacy, privacy and social standing? The child is not a party to the matrimonial conflict, and courts weigh this heavily. |
Interim maintenance cannot wait for science
A paternity dispute does not suspend the child's need to eat. Courts routinely grant interim maintenance under Section 144 BNSS on the strength of the presumption, leaving the respondent's challenge for trial. A respondent who believes he has a genuine non-access case should still comply with interim orders — default invites enforcement and costs, and compliance is without prejudice to the defence.
Practical notes for both sides
For respondents: the defence is built on documents proving absence of opportunity — postings, passports, decrees of separation. Plead them with dates in the first reply; a foundation laid late looks like an afterthought.
For mothers: resist roving DNA demands by invoking the conclusiveness of Section 116 and the child-welfare line of reasoning; where a test is nonetheless directed and is scientifically sound, consider that a favourable result ends the dispute decisively.
For both: remember that legitimacy and maintenance are distinct — even a child whose legitimacy is disputed may claim maintenance as an illegitimate child under Section 144 BNSS, which covers legitimate and illegitimate minor children alike. The paternity fight, in other words, rarely extinguishes the liability; it only changes its doctrinal route.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
What does the presumption of legitimacy say?
Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 — corresponding to Section 112 of the Evidence Act, 1872 — provides that the birth of a child during the continuance of a valid marriage, or within 280 days of its dissolution while the mother remains unmarried, is conclusive proof of legitimacy, unless it is shown that the parties had no access to each other at any time when the child could have been begotten.
Can a respondent demand a DNA test simply by denying paternity?
No. Because the presumption is conclusive, a bare denial changes nothing. The respondent must first plead and prima facie establish non-access — the absence of opportunity for marital relations during the relevant period — before a court will even consider directing a test. Courts consistently refuse tests sought as a roving inquiry or to harass the mother.
What factors do courts weigh before ordering a DNA test?
Whether non-access is prima facie shown; whether the test is eminently necessary to decide the dispute or the case can be decided on other evidence; the child's legitimacy, privacy and welfare, since a test result can brand a child for life; and the proportionality of forcing a bodily-sample procedure. The power exists, but it is exercised sparingly and with recorded reasons.
What happens if a party refuses to undergo a court-ordered test?
The court cannot ordinarily compel the sample by force, but it may draw an adverse inference against the refusing party. A respondent who obtains a DNA direction and then faces the mother's refusal, or vice versa, will find the refusal weighed in the overall assessment — though courts remain cautious where the inference would effectively bastardise the child.