The marriage between the applicant (Dr. Ifraq Mohammad Ifraq Husain) and respondent no. 2 (Smt. Shazia Parveen) was conducted according to Muslim rites on November 12, 2013.

Their relationship lasted until 2017, after which his wife began living with her parents due to alleged mistreatment from her husband and in-laws, reportedly stemming from insufficient dowry. 

In this case, the applicant (Dr Ifraq @ Mohammad Ifraq Husain) attempted to claim that his wife, with whom he co-habited between 2013-2017, had an extramarital affair and was leading an adulterous life. 

To prove his claim and to deny paternity of the daughters, he secretly took a blood sample of one of a blood sample of one of his two daughters and sent it to a private DNA lab in Hyderabad and obtained a certificate stating he was not the biological father of the said daughter.

This all happened after the wife moved the Court in July 2019, seeking maintenance for herself and her daughters and while the said maintenance proceedings were pending before the Court.

Later, he moved the Court to direct his wife and two daughters to give their samples so that the girl’s paternity could be established with the aid of the Court’s order, and he could be exempted from paying maintenance to her daughter and wife.

When the said plea was rejected, he moved the High Court seeking an order for a fresh DNA test of the applicant and two daughters.

The Court said

 that on the birth of child during marriage, the presumption of legitimacy is conclusive no matter how soon the birth occurs after the marriage.

The Court also said there must be a strong prima facie case that the husband must establish non-access with his wife to dispel the presumption under section 112 of the Evidence Act.

In this regard, the Court also relied upon the Supreme Court’s 2021 ruling in Ashok Kumar v. Raj Gupta and others LL 2021 SC 525, wherein it was observed that in circumstances where other evidence is available to prove or dispute the relationship (between husband and wife), the Court should ordinarily refrain from ordering blood tests like DNA tests against the will of the party who is to be subjected to such test.

Against this backdrop, the Court noted that the applicant had failed to establish or even plead in his pleadings that he had no access to his wife during the subsistence of marriage from November 2013 to the year 2017, when she left her matrimonial home.

The Court also opined that if the DNA test is being carried out in a normal routine way, it would open the pandora’s box for “unscrupulous” husbands to challenge the paternity of their offspring.

The Court also said that whether the DNA test should be permitted on the child is to be analysed through the child’s prism and not through the prism of the parent. It added that a child cannot be used as a pawn to show that the mother of the child was living in adultery.

The Court also rejected his prayer to set aside the court’s order directing him to pay maintenance to his wife and two daughters.