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Supreme Court of India · 20/02/2023

APARNA AJINKYA FIRODIA versus AJINKYA ARUN FIRODIA

[2023] 4 S.C.R. 680 · 2023 INSC 146

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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

  1. 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.
  2. 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

Held

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.

Judgment PDF: Supreme Court of India, [2023] 4 S.C.R. 680.