DNA test of child can be ordered to prove adultery of wife, rules Madhya Pradesh High Court, rejects woman’s plea

The court underlined that in the present case, the child’s DNA test was sought only to prove the allegation of adultery against the wife.

Findings

• In cases where necessary pleadings are there and no declaration is sought regarding the illegitimacy of the child, and the issue only relates to adultery of the wife, then, in appropriate cases, a DNA test can be ordered.
• Sufficient pleadings present in the divorce petition in this case.
• Present one is the third divorce petition, and the first divorce petition was scuttled by the wife on the assertion that she intends to seek divorce by mutual consent.
• Then the application for mutual consent was filed, in which the wife did not appear for the second motion, and now this third divorce petition has been filed, which has also pending since the year 2021.
• The order passed by the family Court is upheld and the woman’s petition dismissed.
• If the petitioner still refuses to part with DNA samples, then the family court would be at liberty to draw a presumption under Section 114(h) (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) of the Indian Evidence Act or the corresponding provisions of BSA 2023 against the petitioner-wife.

Background

• The petitioner-wife filed the plea against the family court order that has allowed the husband’s plea to conduct a DNA test to determine whether the child born to the estranged couple was the biological child of the man or not.
• The dispute arose when the man filed the divorce plea in 2019 on the grounds of adultery, alleging that he had “non-access” to his wife during the period of conception, and in 2022, the family court allowed his plea.
• The man claimed that he returned home from outstation duty in October 2015, and within four days, his wife informed him that she was pregnant.
• He further argued that the child was born within eight months of that date, and on the medical consultations, he came to know that the conception of the child cannot be known within four days and that it can be known by the lady at least 20 to 30 days after conception.
• The wife strongly opposed the man’s submissions and argued that to protect the right to privacy, the family court could not have issued directions for a DNA test of the child.
• It is further argued that the right to privacy, autonomy and identity of the children under the convention on child rights have to be respected and best interests of the child have to be secured by the courts while giving such directions.