The Supreme Court of India, in a 72-page judgement issued on February 20, 2023, ruled that DNA testing of children to determine their paternity in matrimonial disputes should only be conducted in exceptional circumstances when it is deemed necessary to resolve the dispute.
Facts of the Case:
On November 23, 2005, the parties entered into marriage in accordance with Hindu customs and traditions in Pune. Their first child, Master HF, was born on December 21, 2009, while they were still married. During the marriage, a second child, Master AF, was born on July 17, 2013.
On June 1, 2017, the respondent-husband filed a petition for divorce under Sections 13(1)(i) and (ia) of the Hindu Marriage Act, 1955, seeking custody of their two children before the Family Court in Pune.
Allegations by Husband
In his petition for divorce, the respondent-husband claimed that the appellant-wife was engaged in an extramarital relationship with KB. The respondent discovered evidence of the affair on September 14, 2016, when he found intimate messages exchanged between the appellant and KB.
On November 9, 2020, the respondent filed an application before the Family Court in Pune, requesting that Master AF, the second child born to the appellant-wife during the marriage, undergo DNA testing to determine paternity. The husband alleged that Master AF was the result of the appellant’s extramarital affair with KB.
The husband also claimed that when confronted about the affair, the appellant-wife admitted to being involved with KB.
The alleged father lacks genetic markers that must be contributed to the child by the biological father. The probability of paternity is 0%.
Defense by Wife:
In her response, the appellant-wife filed an affidavit opposing the respondent’s application for a court order directing DNA testing of Master AF. Among other arguments, the appellant-wife maintained that the respondent had failed to establish a prima facie case warranting the court’s exercise of discretion to grant the DNA testing request.
Family Court, Pune
On August 12, 2021, the Family Court in Pune granted the respondent’s request for DNA testing of Master AF. Additionally, the court noted that if the appellant-wife failed to comply with the court’s order, the allegations of adultery against her would be determined by drawing an adverse inference under Illustration (h) of Section 114 of the Indian Evidence Act, 1872 (hereafter referred to as “Evidence Act” for the sake of brevity). The Family Court’s significant findings are summarized below:
The court relied on the decision of the court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik, (2014) 2 SCC 576, to conclude that Section 112 of the Evidence Act was enacted when the scientific advancement in DNA testing was not as sophisticated as it is today.
High Court of Judicature at Bombay
The appellant, dissatisfied with the order dated 12th August, 2021 passed by the Family Court, Pune, approached the High Court of Judicature at Bombay by way of a Writ Petition challenging the same. The appellant contended that the Family Court failed to appreciate the necessity of a strong prima facie case for directing DNA profiling, and that there was no evidence to support the respondent’s prayer for a DNA test. The appellant further submitted that the order of the Family Court was against the presumption provided under Section 112 of the Indian Evidence Act, the provisions of the Hindu Marriage Act, 1955, and the fundamental rights guaranteed under Article 21 of the Constitution of India. However, the High Court, in its judgment dated 22nd November, 2021, dismissed the Writ Petition filed by the appellant and upheld the order of the Family Court dated 12th August, 2021.
Arguments by Wife
The counsel appearing for the petitioner-wife contended that the lower courts had been indiscriminately ordering DNA tests without taking into account the presumption of legitimacy enshrined in Section 112 of the Indian Evidence Act, the settled legal principles laid down in the case of Goutam Kundu v. State of West Bengal & Anr, and the constitutional rights of the child, including their right to privacy, identity, autonomy and best interests.
Submission by Husband
In contrast, the counsel appearing for the respondent-husband argued that the impugned orders were based on an unassailable understanding of the facts of the case and did not require any intervention. He also asserted that the petitioner filed the appeal to conceal her adulterous behavior.
Additionally, he contended that in the instant case, the most crucial evidence to prove the accusations of adultery was the DNA test, and that it could not be excluded on the basis of sensitivity or privacy.
Supreme Court of India
A division bench of Justice BV Nagarathna and Justice V Ramasubramanian observed that the right of children to not have their legitimacy questioned frivolously is an essential attribute of their right to privacy. At the outset, the Court said:
Children have the right not to have their legitimacy questioned frivolously before a Court of Law.
This is an essential attribute of the right to privacy. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses.
Therefore, the court established the criteria to be evaluated when determining whether a DNA test of a minor child should be directed upon the request of either parent.
Supreme Court Guidelines On DNA Test
The Supreme Court enunciated the following legal principles concerning the presumption of legitimacy of a child born during the subsistence of a marriage under Section 112 of the Indian Evidence Act and the situations where such presumption may be rebutted through evidence:
- The objective of the presumption of legitimacy set out under Section 112 with respect to a child born during wedlock in conjunction with Section 4 of the Indian Evidence Act, 1872, is to avoid an unnecessary investigation into the paternity of a child whose parents had the opportunity to have sexual intercourse with each other at the relevant time.
- In order to rebut the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872, the party seeking to question the legitimacy of the minor child must first establish a prima facie case of “non-access” to the other party. Furthermore, if no plea of “non-access” has been raised, a DNA test may not be ordered.
- The direction to conduct a DNA Test of a minor child must be viewed in the context of the child’s best interests, taking into account the child’s rights to privacy, identity, and autonomy.
- The Court shall order such a direction sparingly and only in exceptional and meritorious cases, where the administration of such a test is necessary to settle the dispute.
- The petitioner-wife, acting in her capacity as the mother and natural guardian of the minor child, cannot be subject to an adverse inference under Section 114(h) of the Evidence Act for refusing to consent to a DNA test. Her actions are in the best interests of the child and therefore, are protected.
The Court further noted:
The short question in the present appeal is as to how a Court can prevent the law’s tidy assumptions linking paternity with matrimony, from collapsing, particularly when parties are routinely attempting to dislodge such presumptions by employing modern genetic profiling techniques.
The Court began its judgment by saying,
Under the Indian legal spectrum, a husband is strongly presumed to be the father of a child born to his wife. Thus, there is a strong presumption regarding the paternity of a child.
This presumption can be overcome only by evidence precluding any procreative role of the husband, such as by showing that the husband and wife had no access to each other at the relevant time of possible conception. In the absence of proof of non-access, the law considers the husband’s paternity to be conclusively established if they cohabited when the child was likely to have been conceived.
The court held that the dispute pertained to the parties of the marriage, and the rights and welfare of the child could not be jeopardized to facilitate a fair trial for either party. In addition, the court stated that…
The lis in these cases is between the parties to a marriage. The lis is not between one of the parties to the marriage and the child whose paternity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child.
Regarding the case in question, the court observed that the husband had explicitly stated his possession of call recordings/transcripts and the daily diary of the appellant-wife, which could be summoned lawfully to establish the appellant’s unfaithfulness. Additionally, the court stated that…
Therefore, it seems to us that the respondent is in a position to attempt to make out a case based on such evidence, as to adultery/infidelity on the part of the appellant.
Therefore, the court determined that a DNA test was not the sole means of determining the truth of the matter.
Accordingly, the court allowed the appeal made by the wife, and overturned the orders of both the family court and the Bombay High Court, which had granted permission for the DNA test. In conclusion, the court stated that…
However, this shall not preclude the respondent-husband from leading any other evidence to establish the allegations made by him against the appellant in the petition for divorce.
The court also clarified that Section 112 of the law does not shield the accused wife from allegations of committing adultery. The court stated that…
We are not suggesting for a moment that Section 112 acts as a shield even for the alleged adulterous conduct on the part of the wife. All that we say is that anything that would destroy the legal effect of Section 112 cannot be used by the respondent, on the ground that the same is being done to achieve another result.