4-day pregnancy claim: Why Madhya Pradesh High Court upheld DNA test for child in Army man’s divorce battle

If there are sufficient pleadings of non-access, a DNA test can be ordered, said the Madhya Pradesh High Court. (Image enhanced using AI)

Findings

• It is a fit case where a DNA test of the child should have been ordered by the family court.
• The family court has not erred in ordering a DNA test of the child.
• In cases where no declaration is sought regarding illegitimacy of the child and the issue only relates to adultery of the wife then, a DNA test can be ordered.
• If there are sufficient pleadings of non-access, a DNA test can be ordered.
• The divorce petition has been filed on the ground of adultery.
• It is not the case where the husband wants to know the paternity of the child or he wants to repudiate the liability to maintain the child or for any other purpose.
• It is the case where a DNA test of the child is being sought only to prove the fact of adultery of the wife.
• The husband has pleaded that he is in the Indian Army and was called in October, 2015 by the wife who is a constable in the Madhya Pradesh police.
• Within four days he was informed by the wife that she is pregnant.
• This could not have been known to the wife within four days of the husband returning from his duty in the army.
• It is further pleaded that the child was born within 8 months of October, 2015 and there is clear pleading of non-access at the time when the child was conceived.
• This 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 a second motion.
• Now this third divorce petition has been filed which is also pending since the year 2021.

Background

• The dispute traces back to a marriage that has seen three divorce petitions.
• The first, filed in 2019, was withdrawn after the parties told the family court they would seek divorce by mutual consent.
• A second petition under the Hindu Marriage Act, 1955, filed the same year, collapsed when the wife appeared for the first motion on October 14, 2019, but failed to turn up for the second motion despite repeated opportunities.
• The family court closed the proceedings on March 2, 2021.
• The present divorce petition, filed in 2021, is founded on adultery.
• In that case, the husband sought a DNA test to establish whether he is the biological father of the daughter born during the subsistence of the marriage.
• On August 22, the family court directed the DNA test prompting the estranged wife to move the high court.

Wife’s case

• Advocate Anuj Pathak, appearing for the petitioner argued that compelling a DNA test of the child would violate the child’s right to privacy, autonomy and identity, and unfairly cast a shadow on her legitimacy.
• The counsel relied on a Supreme Court’s ruling to stress that Section 112 of the Indian Evidence Act creates a strong presumption that a child born during a valid marriage is legitimate, and that DNA tests should not be ordered as a matter of routine.
• He submitted that courts must prioritise the best interests of the child.
• The counsel argued that no child should be dragged into parental disputes in a manner that stigmatises her future and urged the high court to set aside the family court’s order.

Husband’s stand

• Advocate Sheetal Tiwari, appearing for the husband countered that the challenge was an attempt to stall proceedings and suppress material facts.
• The counsel pointed out that he is posted with the Indian Army and could visit home only once every few months, while the wife was serving as a police constable in Jabalpur.
• He submitted that the husband was called home in October 2015 and within four days of his arrival, the wife informed him that she was pregnant.
• The child was born on June 26, 2016 within eight months of that visit.
• The counsel for the husband claimed that medical advice later revealed pregnancy cannot ordinarily be detected within four days of conception.
• This bolstered the husband’s assertion that he had no access to the wife at the time the child could have been conceived, submitted the counsel.