Why Uttarakhand High Court rejected husband’s plea for child’s DNA test to prove wife’s adultery

Justices Manoj Kumar Tiwari and Pankaj Purohit rejected the appeal.

Plea for DNA test

The husband had instituted a matrimonial proceeding under Hindu Marriage Act before a family court in Nainital against his wife, inter alia alleging matrimonial misconduct including adultery.

During the pendency of said proceedings, the husband moved an application before the court seeking direction for conducting DNA examination of the minor child. The said application was filed with the object of substantiating the allegation of adultery levelled by appellant against his wife.

However, his plea was rejected by the family court. Feeling aggrieved by this, he approached the high court.

The counsel for the appellant argued that he had never sought any declaration regarding the paternity of the child, nor did he intend to disturb the legal status or rights of the minor child. It was contended that the limited prayer of the appellant was only to obtain scientific evidence to substantiate his plea of adultery.

It was further submitted that in matrimonial disputes, particularly those involving allegations of adultery, direct evidence is seldom available and parties are often required to rely upon scientific evidence.

Privacy of child

At the outset, the court noted that Section 112 of the Indian Evidence Act is based upon the principle of pater est uem nuptiae demonstrant meaning that “the father is he whom the marriage points out”, which seeks to protect children from the social consequences of destitution, bastardy and vagrancy.

Section 112 states- 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.

The court pointed out that courts must undertake a careful balancing exercise between the rights of parties, particularly keeping in view the welfare, dignity and privacy of child, before directing DNA examination.

It further noted that DNA testing cannot be ordered as a matter of routine or merely on the asking of a party.

“A direction for DNA examination, if granted, may have the effect of bastardising the child by conclusively determining nonpaternity. Therefore, Courts are required to exercise utmost caution and restraint while dealing with such requests,” the court added.

It noted that the husband’s attempt to seek DNA examination directly, without first discharging the burden of rebutting presumption of legitimacy, cannot be countenanced in law.

“The balance of interest, in the facts of case, clearly tilts in favour of protecting the legitimacy and rights of the child rather than permitting a roving inquiry through DNA examination,” it added.

The court held that there was no illegality by the family court in rejecting the application filed by the husband. The court, therefore, dismissed the application.