Disputed paternity: when can the court order DNA test in matrimonial cases involving allegations of adultery

The Supreme Court in Sharda vs. Dharmpal has held that a matrimonial court has the power to order a person to undergo a medical test. Such an order would not be in violation of the right to personal liberty under Article 21 of the Constitution.

The fact that a child was born during the subsistence of a valid marriage is legally considered conclusive proof of the “legitimacy” of the child unless proven otherwise. However, the courts often have to deal with applications questioning the paternity of children, as the husbands seek to prove the alleged adultery or infidelity of their wives on the basis of DNA tests. The consequences of such acts on the child are enormous but such applications are routinely filed and even orders are passed, subjecting the children to DNA tests.

On Monday, the apex court passed an exhaustive judgement on the subject in Aparna Ajinkya Firodia v. Ajinkya Firodia, 2023, and in a way expressed concern at the routine attempts to dislodge the legal presumption favouring the “legitimacy” of the child. It reiterated that such orders ought not to be passed on merely asking of a husband.

The Supreme Court held that merely because either of the parties has disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. Only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such a test.

In the present case, Ramasubramanian, J stressed that the question as to whether a DNA test should be permitted on the child is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the husband to prove by other evidence, the adulterous conduct of the wife, but the child’s right to identity should not be allowed to be sacrificed.

“To enable one of the parties to the marriage to have the benefit of a fair trial, the Court cannot sacrifice the rights and best interests of a third party to the list, namely, the child.”

The “conclusive proof” of the “legitimacy” of the child can be questioned by establishing that the husband and wife did not or could not have any access to each other at any time when the child was conceived. 

The court said the principle underlying Section 112 is to prevent an unwarranted enquiry as to the parents of the child and therefore, once a marriage is held to be valid, there is a strong presumption of the legitimacy of the child. The court explained that “access” or “non-access” does not mean actual cohabitation but means the “existence” or “non-existence” of opportunities for a sexual relationship.

The court stressed that strong and cogent evidence is required to prove that “access” between the husband and wife was impossible “on account of serious illness or impotency or that there was no chance of sexual relationship” during the period when the child must have been begotten.

However, 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 a 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 a sexual relationship between the parties during the period when the child must have been begotten. Thus,

“Where the husband and wife have cohabited 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. Therefore, shreds of evidence to the effect that the husband did not have intercourse with the wife at the period of conception, can only point to the illegitimacy of a child born in wedlock, but it would not uproot the presumption of legitimacy under Section 112.”

Further, 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. What would be proved, is adultery on the part of the wife, however, the legitimacy of the child would still be conclusive in law. Hence, the conclusive presumption of paternity of a child born during the subsistence of a valid marriage cannot be rebutted by a mere DNA test report. What is necessary to rebut is the proof of non-access at the time when the child could have been begotten, that is, at the time of its conception.

In Dipanwita Roy vs. Ronobroto Roy, the Supreme Court has held that DNA testing is the “most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity.”

The court has also held that it “should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so.” In the same ruling, the apex court also said that an adverse presumption can be drawn against the wife in case she refuses to undergo the DNA test.

A mix-up of Section 112 and Section 114 is not possible as they both fall under different compartments. Section 112 deals with something where the existence of a fact is taken to be conclusive proof, without any possibility for the disputing party to lead evidence for disproving the same. The only escape route or emergency exit available for a person to deprive another person of the benefit of Section 112, is to show that the parties to the marriage did not have access to each other at the time when the child could have been begotten. Section 114 has nothing to do with, nor is it in connection with conclusive proof of legitimacy dealt with by Section 112.

The word “presumption” itself is not used in Section 112. The expression used in Section 112 is “conclusive proof”. Therefore, by virtue of Section 4, no evidence shall be allowed to be given for the purpose of disproving it.

Further, an adverse inference, in law, can be drawn only against the person who refuses to answer a question. In the case on hand, the appellant has a dual role to play, namely, that of the respondent’s wife and that of Master Arjun’s mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit for 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 a DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her.

“By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant-wife may be rewarded, but not punished with an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant into a catch-22 situation.”

A Family Court, no doubt, has the power to direct a person to undergo medical tests, including a DNA test and such an order would not be in violation of the right to personal liberty under Article 21 of the Constitution. However, the Court should exercise such power only when it is expedient in the interest of justice to do so, and when the fact situation in a given case warrants such an exercise, namely:

• 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.
• DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed.
• A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly an issue, but is merely collateral to the proceeding.
• Merely because either of the parties has disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without a DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such a test.
• While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc.

While in India, parents are presumed to be the decision makers for their children, 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.

“Genetic information is broadly understood as shedding light on a person’s essence, as going to the very heart of who he/she is. That kind of intimate, personal information, which is so highly valued in our society, is precisely what the law protects in the right of privacy, which extends even to children.”

The DNA test results can cause not only confusion in the mind of the child but a quest to find out who the real father is and mixed feelings towards a person who may have nurtured the child but is not the biological father. Not knowing who one’s father is creates mental trauma in a child. One can imagine, if, after coming to know the identity of the biological father what greater trauma and stress would impact a young mind.

“A child should not be lost in its search for paternity. Precious childhood and youth cannot be lost in a quest to know about one’s paternity.”

Further, no woman, particularly, one who is married can be exposed to an enquiry on the paternity of a child she has given birth to in the face of Section 112 of the Evidence Act subject to the presumption being rebutted by strong and cogent evidence. This wholesome object of Section 112 of the Evidence Act conferring legitimacy on children born during the subsistence of a valid marriage, is to be preserved.

If the paternity of the children is the issue in a proceeding, a DNA test may be the only route to establish the truth. However, the present was not a case where a DNA test is the only route to the truth regarding the adultery of the mother. 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 the law to prove the infidelity of the appellant. Therefore, the respondent is in a position to attempt to make out a case based on such evidence, as adultery/infidelity on the part of the appellant.

Further, 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 the child.

The Court set aside the orders of the Family Court as well as the High Court and directed that a cost of Rs.1 Lakh be paid by the respondent to the appellant within a period of one month from the date of the order.

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