DNA Test for Adultery: Supreme Court Limits Use in Matrimonial Cases (20 February 2023)

Introduction

Date of the Judgment: 20 February 2023

Citation: 2023 INSC 130

Judges: V. Ramasubramanian J. and B.V. Nagarathna J. (Concurring Opinion by V. Ramasubramanian J.)

Can a husband compel his wife and child to undergo a DNA test to prove adultery in divorce proceedings? The Supreme Court of India recently addressed this critical question, emphasizing the protection of children’s rights and the limitations of using DNA tests to establish adultery. The court’s decision underscores the importance of the presumption of legitimacy of a child born within a valid marriage and sets boundaries for the use of scientific evidence in family law. This judgment clarifies the interplay between the right to privacy, the presumption of legitimacy, and the need for a fair trial in matrimonial disputes.

Case Background

The appellant (wife) and the respondent (husband) were married on 23rd November 2005 in Pune. They had two sons, Master “Y” born on 21st December 2009, and Master “X” born on 17th July 2013. In 2017, the husband filed for divorce, alleging that his wife was in an adulterous relationship. He claimed to have discovered this on 14th September 2016 after seeing intimate messages on her phone.

The husband then privately conducted a DNA test of Master “X” at DNA Labs India, which indicated a 0% probability of him being the biological father. Based on this, he filed an application in the Family Court, Pune, on 9th November 2020, seeking a court-ordered DNA test of Master “X” to ascertain paternity. The husband contended that the DNA test was necessary to prove his wife’s infidelity, which was the ground for divorce.

Timeline:

Course of Proceedings

The Family Court, Pune, allowed the husband’s application for a DNA test, stating that the test was necessary to establish adultery and that the privately obtained DNA report was admissible as evidence under Section 14 of the Family Courts Act, 1984. The Family Court also held that while Section 112 of the Indian Evidence Act, 1872 creates a presumption of legitimacy, it is rebuttable, particularly with scientific evidence. The court further noted that if the wife refused the DNA test, an adverse inference would be drawn against her under Section 114(h) of the Indian Evidence Act, 1872.

The High Court of Judicature at Bombay upheld the Family Court’s decision, stating that the husband had established a strong prima facie case for a DNA test. The High Court also held that a DNA test would not violate the wife’s or child’s fundamental rights, and that the presumption under Section 112 of the Indian Evidence Act, 1872 was rebuttable.

Legal Framework

The Supreme Court examined the following provisions of the Indian Evidence Act, 1872:

• Section 4: Defines “conclusive proof,” stating that when one fact is declared as conclusive proof of another, the court must regard the other as proved and not allow evidence to disprove it.
• Section 112: States that birth during a valid marriage is conclusive proof of legitimacy unless it is proven that the parties had no access to each other at the time of conception.
  
  “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.”
• Section 114: Allows the court to presume the existence of any fact that it thinks likely to have happened, considering natural events, human conduct, and public/private business. Illustration (h) states that if a person refuses to answer a question they are not legally compelled to answer, the court may presume the answer would be unfavorable to them.
  
  “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume –– (h) 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; …”

The Court also noted that the principle underlying Section 112 is to prevent unnecessary inquiries into the paternity of a child born to parents who had access to each other. The presumption of legitimacy is rebuttable only by strong evidence of non-access.

Arguments

Appellant (Wife)’s Submissions:

• ✓ The High Court erred in upholding the Family Court’s direction for a DNA test.
• ✓ The respondent failed to establish an “eminent need” for the DNA test, as required by the Supreme Court’s decision in Goutam Kundu vs. State of West Bengal [1993 3 SCC 418].
• ✓ The respondent did not prove non-access to dislodge the presumption under Section 112 of the Indian Evidence Act, 1872.
• ✓ The respondent’s reliance on a private DNA test report is premature, as its authenticity needs to be proven during trial.
• ✓ The issue of legitimacy is linked to the allegations of adultery and cannot be lightly trifled with. The presumption of legitimacy must be preserved.
• ✓ The respondent’s claim of discovering adulterous messages in September 2016 is unsubstantiated.
• ✓ The DNA test would impinge on the child’s right to privacy and any issue as to legitimacy will have major societal repercussions on the innocent child.

Respondent (Husband)’s Submissions:

• ✓ The High Court and Family Court orders were based on a correct appreciation of facts and law.
• ✓ The appeal is an abuse of the process of law, filed to mask the wife’s adulterous conduct.
• ✓ A judgment in a matrimonial proceeding is a judgment in rem, and any evidence to bring out the truth should be permitted.
• ✓ Section 112 of the Indian Evidence Act, 1872 does not prevent courts from ordering DNA tests in deserving cases, as per Dipanwita Roy vs. Ronobroto Roy [2015 1 SCC 365].
• ✓ The most material evidence to establish adultery is the DNA test, and it cannot be shut out on grounds of sensitivity or privacy.
• ✓ The Family Court’s order was based on prima facie evidence, including the private DNA test report.
• ✓ The wife’s reluctance to allow the DNA test corroborates the allegations of adultery against her.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the Family Court, Pune, and the High Court of Judicature at Bombay correctly interpreted Section 112 of the Indian Evidence Act, 1872 in directing a DNA test of Master “X”?
2. Whether, upon the appellant’s non-compliance with the DNA test direction, allegations of adultery against her could be determined by drawing an adverse inference under Illustration (h) of Section 114 of the Indian Evidence Act, 1872?
3. What order?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

Legal Provisions:

• Section 4, Indian Evidence Act, 1872: Definition of “conclusive proof.”
• Section 112, Indian Evidence Act, 1872: Conclusive proof of legitimacy by birth during marriage.
• Section 114, Indian Evidence Act, 1872: Court may presume the existence of certain facts.
• Section 14, Family Courts Act, 1984: Power of Family Courts to consider any report, statement, documents, and information.
• Article 21, Constitution of India: Right to personal liberty.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Goutam Kundu vs. State of West Bengal [1993 3 SCC 418]*: The Court reiterated that blood tests cannot be ordered routinely and that there must be a strong prima facie case to dispel the presumption under Section 112 of the Indian Evidence Act, 1872.
• Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women [2010 8 SCC 633]*: The Court emphasized that DNA tests should be ordered only when “eminently needed” and not as a matter of routine.
• Ashok Kumar vs. Raj Gupta [2022 1 SCC 20]*: The Court reiterated that a party seeking a DNA test must bring on record strong prima facie evidence of non-access.
• Perumal Nadar (dead) by Lrs. vs. Ponnuswami [1970 1 SCC 605]*: The Court reaffirmed that clear and satisfactory evidence of non-access is needed to rebut the presumption under Section 112 of the Indian Evidence Act, 1872.
• Dipanwita Roy vs. Ronobroto Roy [2015 1 SCC 365]*: The Court distinguished the facts of the present case from Dipanwita Roy, noting that in the latter case, there was a specific plea of non-access, which was absent in the present case.
• Sharda vs. Dharmpal [2003 4 SCC 493]*: The Court acknowledged that a matrimonial court can order medical tests but emphasized that such power should be exercised when it is in the interest of justice and when the facts of a case warrant it.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the need to protect the legitimacy of children born within a valid marriage, the right to privacy, and the best interests of the child. The Court emphasized that DNA tests should not be used routinely to prove adultery, particularly when there is no evidence of non-access.

Fact:Law Ratio

The Court’s reasoning was primarily based on the legal interpretations of Sections 4, 112, and 114 of the Indian Evidence Act, 1872, and the principles established in previous judgments. The factual aspects of the case were considered, but the legal framework played a more significant role in the final decision.

Logical Reasoning:

The Court considered alternative interpretations, such as the argument that the DNA test was necessary for a fair trial. However, the Court rejected this argument, emphasizing that the child’s rights and the presumption of legitimacy are paramount. The Court also rejected the argument that Section 114(h) could be used to draw an adverse inference against the wife for refusing to subject her child to a DNA test.

The Court’s decision was based on a step-by-step analysis of the legal provisions and the facts of the case. The Court emphasized that the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872 is a strong legal principle that should not be easily disregarded.

The Supreme Court’s decision was unanimous, with Justice V. Ramasubramanian writing a concurring opinion to emphasize two key aspects: the interplay between Sections 112 and 114(h) of the Indian Evidence Act, 1872, and the question of whose rights should tilt the balance in the scales of justice.

The Court quoted the following from the judgment:

• “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.”
• “Thus, birth during the continuance of marriage is “conclusive proof” of legitimacy, unless it can be shown that the parties had no access to each other at any time when the child could have been begotten.”
• “The presumption of legitimacy is a rebuttable presumption. But the burden is on the person who seeks to displace that presumption.”
• “The right to privacy of a child is not just a legal right, but also a human right. The child should not be made a pawn in the game of matrimonial discord.”
• “Section 114(h) is discretionary and cannot be used to draw an adverse inference against the wife for protecting her child’s interests.”

Conclusion

The Supreme Court’s judgment in Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia sets a significant precedent regarding the use of DNA tests in matrimonial disputes, particularly when adultery is alleged. The court has clarified that:

• DNA tests should not be ordered routinely in cases of alleged adultery.
• The presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872 is a strong legal principle that should be upheld unless there is clear and satisfactory evidence of non-access.
• The best interests of the child, including their right to privacy, must be a paramount consideration.
• Section 114(h) of the Indian Evidence Act, 1872 cannot be used to draw an adverse inference against a party for refusing to subject their child to a DNA test when there is no evidence of non-access.
• The issue of paternity of a child is alien to the issue of adultery on the part of the mother.

This judgment emphasizes the need for a balanced approach in family law, where the rights of all parties, especially children, are protected. It also highlights the importance of upholding the presumption of legitimacy and preserving the sanctity of marriage. The Supreme Court has effectively restricted the use of DNA tests as a tool to prove adultery, ensuring that the privacy and well-being of children are not compromised in matrimonial disputes. This decision reinforces the principle that the presumption of legitimacy is not easily rebutted and that the courts must be cautious in ordering DNA tests, especially when the child’s interests are at stake.