Revision summary
Puttaswamy held that privacy is part of Article 21 and that any restriction must be legal, necessary and proportionate. Section 112 of the Evidence Act treats a child born in a valid marriage as legitimate unless non-access is proved. Goutam Kundu and later cases refused to make DNA a routine paternity weapon in a private quarrel. A test on a child still in the womb adds miscarriage risk and collides with the woman’s bodily autonomy. Suchita Srivastava had already linked reproductive choice to personal liberty. Proportionality will rarely justify a prenatal paternity expedition. The law of paternity is not a right to inspect a womb.
Model answer
Introduction
K.S. Puttaswamy v. Union of India held that privacy is not a foreign graft on Article 21. It is intrinsic to life and personal liberty: dignity, bodily autonomy, informational self-control. A demand that a pregnant woman submit her foetus to a paternity DNA test sits at the hardest edge of that holding. Indian evidence law was already cautious about DNA even after birth.
Body
Privacy under Article 21
Privacy is a fundamental right; any restriction must pass legality, legitimate aim and proportionality.
- Peg: Maneka Gandhi v. Union of India held that the procedure which takes away personal liberty must be fair, just and reasonable, not merely a form in a statute.
- Peg: The nine-judge Bench in Puttaswamy (2017) held that privacy is a fundamental right covering the body, the home and personal data.
- Peg: Suchita Srivastava v. Chandigarh Administration treated a woman’s reproductive choice as a dimension of personal liberty; a forced medical procedure is a search of the body.
- Peg: After Puttaswamy, a court order compelling such a procedure is still State action; the party who wants it must show an aim that cannot be met by a milder means.
DNA and paternity after birth
Legitimacy is a rule of evidence, not a husband’s right to a laboratory.
- Peg: Section 112 of the Indian Evidence Act — and the matching provision of the Bharatiya Sakshya Adhiniyam — says a child born during a valid marriage is conclusive proof of legitimacy unless non-access is proved.
- Peg: Goutam Kundu v. State of West Bengal warned that courts should not order tests that “bastardise” a child to satisfy suspicion.
- Peg: Later Benches in Bhabani Prasad Jena, Dipanwita Roy v. Ronobroto Roy and related cases allowed a test only when the interest of justice clearly required it, with a possible adverse inference on refusal — not a routine swab in every maintenance fight.
- Peg: The child’s legitimacy, dignity and privacy do not belong to curiosity.
The child in the womb
A prenatal paternity expedition adds miscarriage risk to an already exceptional power.
- Peg: Amniocentesis or chorionic sampling carries a risk of miscarriage; it is more invasive than a swab after birth.
- Peg: Indian law does not treat the foetus as a full constitutional person in the way it treats a born child; the pregnant woman’s health and privacy are the primary rights on the table.
- Peg: Using the second trimester as a device to prove adultery will almost always fail proportionality.
- Peg: A rare case of serious crime, or a procedure already needed for the woman’s health, is imaginable; a private paternity quarrel is not.
Flow diagram
flowchart TD P[Puttaswamy Art 21] --> B[Bodily autonomy] E[s.112 legitimacy] --> C[Born child] W[In-utero DNA] --> R[Risk to woman and foetus] R --> N[Usually no order] B --> N C --> N
Conclusion
Privacy is part of Article 21. DNA paternity tests are exceptional, not routine, because of Section 112 and the child’s dignity. A test on the unborn child for paternity will almost always fail proportionality against the woman’s bodily autonomy.
Quick related
Students also ask
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What changes has the Union Government recently introduced in the domain of Centre-State relations? Suggest measures to be adopted to build the trust between the Centre and the States and for strengthening federalism.
Next question in the 2024 paper (Q13). View answer →
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Can a husband compel amniocentesis for paternity?
Almost never. The invasion and risk are on the woman; suspicion is not a proportionate aim.
-
Is a born child’s DNA easier to order?
Easier than in-utero, still not automatic. Courts balance truth against legitimacy and the child’s privacy.
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