Summary
In a husband's divorce petition alleging adultery, the Pune Family Court, affirmed by the Bombay High Court, directed a DNA test of the couple's second son born in 2013 on the strength of a private test report, adding that the wife's refusal would found an adverse inference of adultery under Section 114(h) of the Evidence Act. The Supreme Court allowed the wife's appeal: birth during a valid marriage is conclusive proof of legitimacy under Section 112 unless non-access is shown, and none was pleaded; a child's DNA test is ordered only where indispensable, not where paternity is collateral and other evidence such as recordings and a diary is available; children's privacy and identity forbid using them as pawns; and no adverse inference arises from a mother's refusal.
Issues
- Whether the Family Court and the High Court rightly applied Section 112 of the Evidence Act in directing a DNA test of a child born during the marriage to enable the husband to prove adultery.
- Whether, if the wife declined to subject the child to the DNA test, an adverse inference of adultery could be drawn against her under Illustration (h) to Section 114 of the Evidence Act.
Provisions considered
- Sections 4 and 112, Indian Evidence Act, 1872Read with the definition of conclusive proof in Section 4, birth during a valid marriage conclusively establishes legitimacy and no evidence may be given to disprove it unless non-access, meaning absence of opportunity for intercourse, is shown when the child could have been begotten; even a genuine DNA report cannot by itself displace the presumption where the spouses had access, and the husband here pleaded none, his own pleading showing access until 2016. (¶¶ 8, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 13)
- Section 114, Illustration (h), and Section 148(4), Indian Evidence Act, 1872The presumption is discretionary ('may presume'), to be drawn on the facts of each case and subject to the exposition that a refusal may stem from fear of loss in unconnected matters; a mother refusing a DNA test of her child to protect the child's interests acts as guardian, not for her own benefit, so no adverse inference of adultery can be drawn, and Section 114 cannot be used to achieve what Section 112 forbids. (¶¶ 9, 9.1, 9.2, 10.1, 26)
- Section 13(1)(i) and (ia), Hindu Marriage Act, 1955The husband's petition sought divorce on grounds of adultery and cruelty; illegitimacy is only incidental to such a claim, and adultery must be proved by other evidence de hors the child's paternity. (¶¶ 3, 4.2, 24, 26)
- Article 21, Constitution of IndiaThough a matrimonial court may direct medical tests (Sharda v. Dharmpal), the power is exercised only when expedient in the interest of justice; genetic information goes to a person's essence and the right to privacy, including the right not to have legitimacy questioned frivolously, extends to children, read with Articles 3, 5 and 8 of the UN Convention on the Rights of the Child. (¶¶ 11.1, 16, 17, 18, 19, 20, 21, 22)
Held
- Drawing on Goutam Kundu, Bhabani Prasad Jena and Inayath Ali, a DNA test of a minor child is not ordered routinely in matrimonial disputes; it may be directed in infidelity cases only where there is no other mode of proof, where sufficient prima facie material including a plea of non-access dislodges the Section 112 presumption, and not mechanically where paternity is merely collateral, the court being mindful of stigma, inheritance and other consequences for the child; DNA tests cannot be used as roving or exploratory inquiries or to compel one party to assist the other. (¶¶ 11, 11.2, 12, 14, 15)
- Dipanwita Roy turned on a specific plea of non-access and a finding that a DNA test was the only means of proving infidelity, and its direction on adverse inference is not a precedent for all cases; Nandlal Wasudeo Badwaik concerned a court-directed DNA report already on record. Here no non-access was pleaded, the husband admitted continuous cohabitation and claimed to hold call recordings and the wife's diary, so the test was neither indispensable nor justified. (¶¶ 10, 10.1, 13, 25, 26)
- Courts must lean towards legitimacy unless the facts are compulsive and clinching; routine DNA testing to prove adultery would redefine the maxim pater est quem nuptiae demonstrant, can traumatise a child, confound identity, mislead where conception involved donor gametes, and imperil the mother's dignity; the question is to be viewed through the prism of the child, who is not a party, and the husband's right to a fair trial cannot override the rights of that third party. (¶¶ 22.3, 23, 24, 25)
- Concurring, V. Ramasubramanian J. held that Sections 112 and 114 operate in distinct compartments; the husband must first cross the outer fence of persuading the court to order a test before any question of refusal arises under Section 114(h); a mother refusing in the child's interest may be rewarded but not punished with an adverse inference, and the husband remains free to prove adultery by other evidence. (¶¶ 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 33, 35, 36)
Result
Civil Appeal No. 1308 of 2023 allowed; Bombay High Court judgment dated 22.11.2021 in Civil Writ Petition No. 7077 of 2021 and Family Court, Pune order dated 12.08.2021 directing DNA test set aside; costs of Rs. 1 lakh payable by the respondent to the appellant before the Family Court within one month; respondent free to lead other evidence to prove his allegations.