In C.A.No.1308 of 2023-SC- In matrimonial disputes involving allegations of infidelity, DNA test of minor child is not to be ordered routinely; Proof by way of DNA profiling is to be directed only where there is no other mode of proving such assertions: SC 
Justices V. Ramasubramanian & B.V. Nagarathna [20-02-2023]

Read Judgment: APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 

LE Correspondent

New Delhi, February 21, 2023: While observing that in cases of allegations of adultery and infidelity, a request for a DNA test of the child, not only competes with the presumption under Section 112 of the Indian Evidence Act, 1872, but also jostles with the imperative of bodily autonomy, the Supreme Court has culled out the principles regarding the circumstances under which a DNA test of a minor child may be directed to be conducted.

While allowing the appeal preferred by the appellant - wife assailing the order passed by the Family Court and the High Court wherein the application of the respondent seeking DNA testing of the second son was allowed, the Top Court opined that if the appellant in her capacity as a mother and natural guardian refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery could be drawn against her.

The Division Bench of Justice V. Ramasubramanian and Justice B.V. Nagarathna allowed the present appeal by observing that that the Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test. 

Factual matrix of the present case was such that the marriage of the appellant with the respondent took place  in  2005 and two children were born out of the wedlock The respondent-husband claimed to have found out the alleged adulterous conduct of the appellant, (3 years after the birth of the second child) when he accidentally stumbled upon the Whatsapp messages in the mobile phone of the appellant.

Subsequently, the respondent privately had a DNA test conducted on the second child, in November 2016, from DNA Labs India.  The respondent then filed a petition for divorce on the ground of adultery, in June 2017.During the pendency of the proceedings for divorce, the respondent moved an application in November 2020 seeking a direction to subject the second son to DNA testing at the Government Central Forensic Laboratory.

The Family Court allowed the application filed by the respondent-husband and the High Court also affirmed the same, forcing the wife to come up with the  present appeal.Two aspects, in the opinion of the Court, which required  deeper analysis were the interplay between Sections 112 and 114(h) of the Evidence Act; and whose rights would tilt the balance in the scales of justice.

The Court noted that the Evidence Act does not include legitimacy of birth during marriage, either under the category of a fact which “may be presumed” or under the category of a fact which “shall be presumed”. 

On the contrary, the Act places birth during marriage as “conclusive proof” of legitimacy. However, Section 112 keeps a window open, enabling a party to the marriage who questions the legitimacy of the child, to show that he/she had no access to the other, when the child could have been begotten.

 “A combined reading of Section 4 and Section 112 would show that once the party questioning the legitimacy of the birth of a child shows that the parties to the marriage had no access to each other, then the benefit of Section 112 is not available to the party invoking Section 112”,  the Court noted. 

“That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions”, the Top Court further held.

Justice Ramasubramanian in his concurring opinion stated that Section 114(h) has no application to a case where a mother refuses to make the child undergo DNA test. It is to be remembered that the object of conducting a DNA test on the child is primarily to show that the respondent was not the biological father. Once that fact is established, it merely follows as a corollary that the appellant was living in an adulterous relationship.

 In other words, if a party to a marriage establishes that there was no access to the other party to the marriage, then the shield of conclusive proof becomes unavailable. If on the contrary, such a party is not able to prove that he had no access to the other party to the marriage, then the shield of Section 112 protects the other party to such an extent that it cannot be pierced by any amount of evidence in view of the prohibition contained in Section 4, Justice Ramasubramanian further remarked. 

In the case on hand, the appellant had a dual role to play, namely, that of the respondent’s wife and that of Master Arjun’s mother.  If the appellant did or refused to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery could be drawn against her. By refusing to subject the child to a DNA test, she was actually protecting the best interests of the child, Justice Ramasubramanian further observed. 

Therefore, the Court opined that the Family Court as well as the High Court was wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal was accordingly allowed.