When can DNA test be ordered to ascertain paternity of child? Supreme Court lays down guidelines

The Supreme Court on Monday held that DNA test in children to ascertain their paternity in matrimonial disputes, should be done only in exceptional cases when it becomes indispensable to resolve the controversy..A division bench of Justices BV Nagarathna and V Ramasubramanian observed that the right of children to not have their legitimacy questioned frivolously is an essential attribute of their right to privacy."Children have the right not to have their legitimacy questioned frivolously before a Court of Law. This is an essential attribute of the right to privacy. Courts are therefore required to acknowledge that 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," the Court said.Hence, the Court laid down the factors to be considered while deciding the question of whether a DNA Test of a minor child should be ordered at the behest of either parent..The Court laid down the following principles of law dealing with the presumption of legitimacy of a child born during wedlock under section 112 of Evidence Act and the circumstances under which this presumption can be rebutted through evidence:.(a) The object behind the presumption of legitimacy laid down under Section 112 qua a child born during the wedlock read with Section 4 of the Indian Evidence Act, 1872, is to prevent an unwarranted enquiry as to the paternity of the child whose parents at the relevant time had “access” to each other.(b) For rebutting the presumption of legitimacy under Section 112 of Indian Evidence Act, 1872, the party questioning the legitimacy of the minor child is required to prima facie show “non-access” to other party. Further, if no plea has been raised as to “non-access”, the DNA Test may not be directed.(c) That a direction to conduct a DNA Test of a minor child should be viewed from the prism of the child, keeping in mind the best interest of the child.(d) Such a direction should be ordered by the Court rarely, and only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy.(e) An adverse inference under Section 114(h) of Evidence Act cannot be drawn against the petitioner-wife who in her capacity as mother and natural guardian is refusing the DNA Test of the minor child and is protecting the interest of the child..The petitioner-wife was represented by Senior Advocate Huzefa Ahmadi and advocates Sanyat Lodha, Aakashi Lodha, Sanjana Saddy and Hima Bhardwaj.The respondent-husband was represented by Senior Advocate Kapil Sibal..The Court was hearing an application filed by the wife in a divorce petition challenging orders of a family court and the Bombay High Court that had allowed DNA test on their minor child at the behest of the husband..The question was whether the High Court and the family court had made an error in ordering the DNA test of the minor child in response to the application filed by the husband in the divorce proceedings. He sought DNA test to ascertain paternity of the second child in order to prove his claim of adultery on the part of the wife. "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," the Court noted..The counsel representing the petitioner-wife pointed out that the courts below routinely directed DNA tests without considering the presumption of legitimacy under Section 112 of the Indian Evidence Act, the legal principles established in the case of Goutam Kundu v. State of West Bengal & Anr, and the fundamental rights of the child, including their best interests, right to privacy, identity and autonomy. On the other hand, counsel for the respondent-husband contended that the orders under challenge were based on an unimpeachable appreciation of the facts of the case and did not warrant any interference. He further contended that the appeal was filed by the petitioner to mask her adulterous conduct.Furthermore, he contended that in the present case, the most material piece of evidence to establish the allegations of adultery was the DNA test, and that the same cannot be shut out on the ground of sensitivity or privacy..The Court began its judgment by saying,"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.".It ruled that the dispute was between the parties to the marriage and that the rights and best interests of the child could not be sacrificed to enable one of the parties to have the benefit of a fair trial."The lis in these cases is between the parties to a marriage. The lis is not between one of the parties to the marriage and the child whose paternity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child," the Court said..Specifically with regard to the case, the Court noted that the husband himself had categorically claimed that he was in possession of call recordings/transcripts and the daily diary of the appellant-wife, 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," the Court said.Hence, it ruled that a DNA test would not be the only way in which the truth of the matter can be established..The Court, therefore, allowed the appeal by the wife and set aside the order of the family court and Bombay High Court which had allowed DNA test. "However, this shall not preclude the respondent-husband from leading any other evidence to establish the allegations made by him against the appellant in the petition for divorce," the Court said..The Court also clarified that Section 112 does not provide protection for the alleged adulterous behavior of the wife."We are not suggesting for a moment that Section 112 acts as a shield even for the alleged adulterous conduct on the part of the wife. All that we say is that anything that would destroy the legal effect of Section 112 cannot be used by the respondent, on the ground that the same is being done to achieve another result," it said..[Read Judgment]