SUPREME COURT REFUSES PERMISSION FOR DNA TESTING OF A MINOR IN A CUSTODY DISPUTE, AS IT WAS NOT IN THE ‘BEST INTEREST OF THE CHILD’

In a recent case of Aparna Ajinkya Firodia vs Ajinkya Arun Firodia, Civil Appeal No. 001308 / 2023, a two Judge Bench of the Hon’ble Supreme Court comprising of Justice V. Ramasubramanian and Justice B.V. Nagarathna passed a Judgment dated 20-02-2023 and refused permission to conduct DNA Testing of a minor child in a custody and family dispute, as it was not in the ‘best interests of the child’.

Facts

i) In the present case, one, Mr. Ajinkya Arun Firodia, the Respondent herein and Mrs. Aparna Ajinkya Firodia, the Appellant herein got married on 23-11-2005 and two Sons named Hridaan and Arjun were born from this wedlock on 21-12-2009 and 17-07-2013.

ii) Thereafter, the Respondent-Husband came to know about the Appellant-Wife’s alleged adulterous life around 14-09-2016.

iii) Thus, the Respondent-Husband filed a Petition for Divorce bearing No.A. 639 of 2017 under Section 13 (1) (i) and (ia) of the Hindu Marriage Act 1955 against the Appellant-Wife before the Ld. Principal Judge, Family Court, Pune (Family Court), on the grounds that the Appellant-Wife allegedly had physical relationship with another person during the subsistence of her marriage with the Respondent-Husband and that she had treated him with cruelty.

iv) The Respondent-Husband had also filed an Application before the Ld. Family Court on 09-11-2020 seeking deoxyribonucleic acid test (DNA Test) of his second child born to his Appellant-Wife, to ascertain his paternity.

v) Family Court’s Observations- The aforesaid Application was allowed by the Ld. Family Court vide Order dated 12-08-2021. The Ld. Family Court further directed that the DNA Test of the second Son be conducted at the Government Central Forensic Laboratory on 14-10-2021, where the DNA samples of both the Child and the Father would be collected. Further, in case the Appellant-Wife declined to comply with the said directions, the Ld. Family Court had the discretion to draw a presumption of the nature contemplated in Section 114 of the Indian Evidence Act 1872 (Court may presume existence of certain facts), especially, in terms of illustration (h) thereof i.e. The Court may presume that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.

vi) Aggrieved, the Appellant-Wife filed a Civil Writ Petition No.7077 of 2021 before the High Court of Bombay on the ground that the Family Court Order dated 12-08-2021 directing for DNA Test has violated her Fundamental Right of Personal Liberty under Article 21 of the Constitution of India.

vii) High Court Observations- The High Court, vide Judgment dated 22-11-2021, upheld the Ld. Family Court Order dated 12-08-2021 on the following grounds:

a) That when the Respondent-Husband had confronted the Appellant-Wife about her adulterous relationship with the other person, both claimed to have had admitted such relationship and birth of the second Son out of the same.

b) However, despite knowing that he may not be the biological father of the second Son, he had sought custody of both the children in the Divorce Petition, as he loved them dearly and further claimed that the Application seeking DNA Testing was filed only to prove his allegations of adultery and cruelty against the Appellant-Wife. Hence, the High Court held that the interest of the Child was not jeopardised by ordering for DNA Test.

c) Further, Section 112 of the Evidence Act provides for presumption of conclusive proof of legitimacy and such presumption can be rebutted by establishing a strong prima facie case and in the present case, without a medical / DNA Test, it would be impossible for the Respondent-Husband to establish his assertions. Section 112 of the Evidence Act has been reproduced below for quick reference:

112. Birth during marriage, conclusive proof of legitimacy

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Supreme Court Observations

Aggrieved by the High Court Judgment dated 22-11-2021, the Appellant-Wife filed a Civil Appeal No. 001308 / 2023 before the Hon’ble Supreme Court. The Apex Court vide Judgment dated 20-02-2023 made the following observations:

1) That under Section 112 Evidence Act, the Court may presume that a child born during the continuance of a valid marriage, is legitimate, based on the presumption of public morality and public policy, unless conclusive proof is shown by the person who questions the legitimacy of the child, that the parents did not have access to each other at the relevant time.

2) That further the Court ought to exercise utmost caution before ordering for DNA Test, as the legitimacy of the child should not be put to peril.

3) Thus, the Supreme Court reiterated certain principles when DNA Test of a minor child may be directed to be conducted:

i) …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…

ii) ..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.

iii) 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 in issue, but is merely collateral to the proceeding.

iv) …only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy (regarding paternity) the Court can direct such test

v) 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.

4) Thus, the Apex Court held that DNA Testing cannot be permitted if it is not in the best interest of the child, (i) as it includes interference with the bodily integrity of a child, (ii) violation of a child’s right to privacy including a right to preserve their identity and details of his/her parentage and a right not to have their legitimacy questioned frivolously before a Court, (iii) and as the test results may also have an adverse effect on the child psychologically if the illegitimacy is proved. An innocent child cannot be traumatised and subjected to extreme stress and tension in order to discover its paternity. Hence, the law provides for conclusive presumption regarding the paternity of a child, subject to a rebuttal, under Section 112 of the Evidence Act.

5) That in the present case, (i) the Respondent-Husband did not raise any plea about non-access between him and the Appellant-Wife at the relevant time. (ii) In fact, the Respondent-Husband had admitted that the second Son was born during the continuous cohabitation of the Parties and thus during the subsistence of the marriage. Thus, the Supreme Court held that no prima-facie case has been made out by the Respondent-Husband which would justify a direction to conduct a DNA Test of the second Son.

6) Further, the Respondent-Husband claimed that he only sought for DNA Test to prove his allegations of adultery against the Appellant-Wife. It was further contended that the Appellant-Wife’s refusal to comply with the directions of the Ld. Family Court in respect of DNA Test, drew adverse inference against the Appellant-Wife under Illustration (h) of the Section 114 of the Evidence Act.

7) The aforesaid contentions and admissions clearly establish that the said adverse inference was not with regard to the minor Child’s potential illegitimacy, but regarding adultery on the part of the Appellant-Wife. Thus, the minor Child, admittedly a legitimate Son of both the Parties, was not connected in any manner with the adultery on the part of the Appellant-Wife.

8) Hence, the DNA Test of the Child should not be roped in to prove the allegations of adultery against the Appellant-Wife and more so, when the Respondent-Husband had already brought on record other evidence to prove such allegations including call recordings / transcripts and the daily dairy of the Appellant-Wife which indicated her adulterous acts. Hence, the Apex Court held that the DNA Test could not be the only possible means to prove the Appellant’s infidelity in the present case.

Thus, based on the aforesaid observations, the Supreme Court held that in the present case, it was not in the ‘best interest of the child’ to direct him for DNA Test, especially when the motive behind seeking such paternity test was not to determine the parentage of the Child, but to prove allegations of adultery against the Appellant-Wife, which could be established with other available evidence. As a result, the Appeal filed by the Appellant-Wife was allowed and the Ld. Family Court Order dated 12-08-2021 and the High Court Judgment dated 22-11-2021 were set aside. The Apex Court further directed the Respondent-Husband to pay costs of Rs. 1 Lakh to the Appellant-Wife.

Editor’s Comments

Under the Indian Laws, DNA testing can only be done with the permission of the concerned court. The very purpose of disallowing DNA testing in the present case was the Child’s welfare, as a paternity test that would prove that the Child was not of the Respondent-Husband would obviously shake up the Child’s confidence, self-assurance, trust in his Parents, etc. The Court while considering these important aspects that would be in the Child’s welfare, declined to allow the DNA testing.

 

Harini Daliparthy

Senior Associate

The Indian Lawyer

 

Edited by

Sushila Ram Varma

Chief Consultant

The Indian Lawyer