Delhi Law Academy Jaipur presents below for aspirants of Rajasthan Judicial Service (RJS), DJS, PCS (J) and other Judicial Services throughout India a very important judgment of the Supreme Court of India on permissibility of a DNA test in divorce proceedings delivered on February 20, 2023.

Original language of the judgment has been maintained; without any substitution or replacement.

This judgment running in 72 pages has been summarized in just about 5 pages by Delhi Law Academy while retaining the original language and original content.

J U D G M E N T

2. Indian Law has proceeded on the assumption that parents are persons who beget a child or who assume the legal obligations of parenthood through formal adoption of child. 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. By allowing rebuttal with proof, that the husband could not have been the biological father, the marital presumption was implicitly premised, in part, on a policy linking parenthood with biological reproduction and on an assumption about the probability of the husband’s genetic contribution. The presumption protects social parentage over biological parentage.

Scientific proof now makes it possible to know with virtual certainty whether a man is genetically related to a child. As a result, Courts are routinely confronted with husbands seeking to disavow their paternity based on newly acquired DNA evidence, notwithstanding them having long performed the social role of father to a child. 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.

Factual Background:

3. The present controversy emerges from an application (Exhibit 84/B) filed by the respondent-husband on 9th November, 2020 before the Principal Judge Family Court, Pune, praying for a direction to subject Master “X”, the second child born to the appellant-wife, during the subsistence of her marriage with the respondent, to deoxyribonucleic acid test (“DNA test” for short), with a view to ascertain his paternity. The said application was filed by the respondent-husband in a petition for divorce filed by him under Sections 13(1)(i) and (ia) of the Hindu Marriage Act, 1955, … The same was allowed by the Family Court, Pune by an order dated 12th August, 2021 and confirmed by the High Court of Judicature at Bombay …

4.1. The appellant and the respondent got married as per Hindu rites and rituals at Pune, on 23rd November, 2005. Their first child, Master “Y”, was born on 21st December, 2009. During the subsistence of their marriage, a second son, namely, Master “X”, was born on 17th July, 2013.

4.2. … In the petition for divorce, the respondent, inter alia, alleged that the appellant-wife was in an adulterous relationship with one Kshitij Bafna, and the respondent discovered the same on 14th September, 2016 when he found that certain intimate messages had been exchanged between the appellant and Kshitij Bafna.

4.5. By an order dated 12th August, 2021, the Family Court, Pune, allowed the application filed by the respondent seeking DNA test of Master “X” and further observed that in the event that the appellant fails to comply with the directions of the Court, the allegations of adultery as against her would be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114 of the Indian Evidence Act, 1872. The salient findings of the Family Court may be encapsulated as under:

1. That the respondent had filed the application seeking direction to conduct DNA test of Master “X”, only with a view to establish adultery on the part of the appellant and not to disparage the paternity of the minor child.
2. On perusal of the DNA Test Report issued by DNA Labs India dated 24th November, 2016, the Family Court concluded that the possibility of the respondent being the biological father Master “X” has been excluded. That in view of Section 14 of the Family Courts Act, 1984 the said Report can be read as evidence.

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8.2. Further, “access” or “non-access” does not mean actual co habitation but means the “existence” or “non-existence” of opportunities for sexual relationship. Section 112 refers to point of time of birth as the crucial aspect and not to the time of conception. The time of conception is relevant only to see whether the husband had or did not have access to the wife. Thus, birth during the continuance of marriage is “conclusive proof” of legitimacy unless “non-access” of the party who questions the paternity of the child at the time the child could have been begotten is proved by the said party

8.4. The latter part of Section 112 of the Evidence Act indicates that if a person is able to establish that the parties to the marriage had no access to each other at any time when the child could have been begotten, the legitimacy of such child can be denied. That is, it must be proved by strong and cogent evidence that access between them was impossible on account of serious illness or impotency or that there was no chance of sexual relationship between the parties during the period when the child must have been begotten. Thus, unless the absence of access is established, the presumption of legitimacy cannot be displaced.

Thus, where the husband and wife have co-habited together, and no impotency is proved, the child born from their wedlock is conclusively presumed to be legitimate, even if the wife is shown to have been, at the same time, guilty of infidelity. The fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a child.

8.5. The presumption under Section 112 can be drawn only if the child is born during the continuance of a valid marriage and not otherwise. “Access” or “non-access” must be in the context of sexual intercourse that is, in the sexual sense and therefore, in that narrow sense. Access may for instance, be impossible not only when the husband is away during the period when the child could have been begotten or owing to impotency or incompetency due to various reasons or the passage of time since the death of the husband. Thus, even though the husband may be cohabiting there may be non-access between the husband and the wife. One of the instances of non-access despite co-habitation is the impotency of the husband. If the husband has had access, adultery on the wife’s part will not justify a finding of illegitimacy.

8.7. Section 112 was enacted at a time when modern scientific tests such as DNA tests, as well as Ribonucleic acid tests (‘RNA’, for short), were not in contemplation of the legislature. However, even the result of a genuine DNA test cannot escape from the conclusiveness of the presumption under Section 112 of the Evidence Act. If a husband and wife were living together during the time of conception but the DNA test reveals that the child was not born to the husband, the conclusiveness in law would remain irrebuttable.

24. Questions as to illegitimacy of a child, are only incidental to the claim of dissolution of marriage on the ground of adultery or infidelity. Allowing DNA tests to be conducted on a routine basis, in order to prove adultery, would amount to redefinition of the maxim, “Pater est quem nuptiae demonstrant” which means, the father is he whom the nuptials point out. While dealing with allegations of adultery and infidelity, a request for a DNA test of the child, not only competes with the presumption under Section 112, but also jostles with the imperative of bodily autonomy.

26. The case of the Respondent-husband is that if a DNA test is allowed and the same reveals that he is not the biological father of “X”, as a corollary, it would be proved that the Appellant-wife committed adultery. We do not find favour with the approach suggested by the Respondent husband to prove adultery, for the following reasons:

1. It is not in dispute that Master “X”, the son stated to be born to the Appellant-wife from the wedlock, was born in the year 2013. DNA testing cannot be used as a short cut to establish infidelity that might have occurred over a decade ago or subsequently after the birth of Master “X”.
2. In the circumstances of the present case, we are unable to accept that a DNA test would be the only way in which the truth of the matter can be established. The respondent-husband has categorically claimed that he is in possession of call recordings/transcripts and the daily diary of the appellant, which may be summoned in accordance with law to prove the infidelity of the appellant. 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
3. No plea has been raised by the respondent-husband herein as to non-access in order to dislodge the presumption under Section 112 of the Evidence Act. Therefore, no prima-facie case has been made out by the respondent which would justify a direction to conduct a DNA test of Master “X”.
4. No adverse inference can be raised in the instant case regarding the legitimacy or paternity of Master “X” vis-à-vis the appellant herein, on her declining to subject Master “X” to a paternity test. Further, on the appellant declining to subject Master “X” to a paternity test, no adverse inference can be drawn as regards the alleged adultery on the part of the appellant herein can be raised. In our view, the allegation of adultery has to be proved by the respondent herein de hors the issue of paternity of Master “X”.

27. In the result, the present appeal is allowed.

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