Ajinkya alleged, Aparna was in an adulterous relationship with Kshitij Bafna. He found certain intimate messages. Ajinkya caused a DNA test at DNA Labs India. DNA Test Report indicated, “probability of paternity is 0%.”

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Section 112 of The Indian Evidence Act, 1872 is based on presumption of public morality and public policy [Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454].

A birth during continuance of marriage is ‘conclusive proof’ of legitimacy unless ‘non-access’ is proved; ‘access’ or ‘non-access’ does not mean actual co-habitation but means ‘existence’ or ‘non-existence’ of opportunities for sexual relationship. If Husband has had ‘access’, adultery on Wife’s part will not justify a finding of illegitimacy. Ronobroto in Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365 had made a specific plea of ‘non-access’. Court specifically recorded a finding, it would have been impossible to prove allegations of adultery/infidelity in absence of a DNA test. Dipanwita Roy is of no assistance. In present case, no plea of ‘non-access’ has been raised. Further, this is not a case where a DNA test would be the only possible way to ascertain truth regarding adultery. DNA test of a minor child is not to be ordered routinely. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions. Court would not be justified in mechanically directing a DNA test of a child, in a case where paternity is not directly in issue. The issue of paternity of Master Arjun is alien to the issue of adultery on part of Aparna.

Rs. 1,00,000/- [Rupees One Lakh] is payable by Ajinkya to Aparna.

– Hon’ble Justice B.V. Nagarathna, Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, [Special Leave Petition No. 9855 of 2022].

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1989, Milan Joseph’s Mother married Raju Kurian. 2001, Milan was born. 2003, Milan’s Parents started living separately and filed for divorce. Milan’s Mother approached Municipal Corporation of Cochin requesting, Ivan Rathinam’s name be entered in Register of Birth as Milan’s Father. High Court erred in holding, Milan’s legitimate interest to know his Father outweighs infringement of Ivan’s right to privacy and dignity.

We agree, a legitimate child may not always be the biological child of the persons in marriage. While parties may be on non-speaking terms, engaging in extra-marital affairs, or residing in different houses, it does not necessarily preclude possibility of spouses having an opportunity to engage in marital relations. A ‘non-access’ means impossibility, not merely inability. For a person to rebut presumption of legitimacy, they must first assert ‘non-access’ which, in turn, must be substantiated by evidence.

It needs to be clarified an ‘additional access’ or ‘multiple access’ does not automatically negate ‘access’ between spouses and prove ‘non-access’ thereof.

Milan Joseph is presumed to be Raju Kurian’s legitimate Son.

– Hon’ble Justice Surya Kant, Ivan Rathinam v. Milan Joseph, [Criminal Appeal No. 413 of 2025] decided on 28.01.2025.

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The child was born on 08.03.2007 during subsistence of a valid marriage between Kamar Nisha and Abdul Lateef solemnized in 2001. Following the maximum ‘pater est quem nuptiae demonstrant‘, the presumption under Section 112 of The Indian Evidence Act, 1872 operates in favor of Abul Lateef. Mere ‘simultaneous access’ of Kamar Nisha does not negate Abul’s ‘access’. Scientific procedures, however advanced, cannot be employed as instruments of speculation.

– Hon’ble Justice Prashant Kumar Mishra, R. Rajendran v. Kamar Nisha, [Criminal Appeal No. 1013 of 2021] decided on 10.11.2025.