[Divorce case] DNA test on child to prove wife's adultery should be done only in exceptional cases: Rajasthan High Court

The Rajasthan High Court recently rejected an application by the husband in divorce proceedings seeking to bring on record a DNA test to prove that he was not the father of a child the couple had during their marriage. .Justice Pushpendra Singh Bhati held that a DNA paternity test could only be conducted in exceptional cases and the child cannot be used as a weapon to get divorce on the ground of adultery based on a DNA test. "This Court thus finds that the requirement of the DNA Paternity Test can only be in the rarest of the rare and exceptional cases, while duly keeping in mind the best interest of the child as well as the law laid down by the Hon’ble Apex Court," the single-judge recorded. .The Court further said that it has to give paramount consideration to the mental and physical health of the child. "It is high time that the society and law realize the importance of the child and childhood vis-a-vis the matrimonial disputes, as losing and winning in a marriage is having a dwarfed impact, when it is compared with losing of childhood, in terms of victimizing the child or sacrificing his constitutional right of dignity, at the altar of matrimonial conflicts," the Court stated..It was dealing with a plea challenging an order of a family court denying the husband's request to amend the divorce petition based on the son's DNA paternity test. The husband had not cited adultery as a ground for divorce in his plea. Additionally, the DNA test was conducted without taking the child or the mother into confidence. .In this background, the Court found that the DNA test invaded upon the rights of a child, which may range from affecting his property rights, right to lead a dignified life, right to privacy and right to have the confidence and happiness of being showered with love and affection by both parents..It was also pointed out that prior to a DNA test, it was necessary for the party concerned to first prove that there was no access between the husband and wife. However, in the case at hand the parties were living together at time of the child's birth and thus, they had access to each other. "The pain of winning or losing a battle of divorce amongst the contesting spouses is much trivial when compared with the rights of the child to have dignity and parenthood," the judge added. .With this, Justice Bhati rejected the husband's plea stating that while choosing between the sanctity of marriage and sanctity of childhood, the Court had no option but to tilt towards the sanctity of the childhood. "The parties may or may not lose the marriage, but the spirit of justice cannot afford to lose the child/childhood, as no Court can shut its eyes, so as only to achieve the goal of justice in matrimonial redressals, while losing the battle of parenthood, being detrimental to the childhood."Senior Advocate Sachin Acharya and advocate Jitendra Choudhary represented the petitioner..[Read Order]