Supreme Court Restricts DNA Tests for Proving Adultery in Matrimonial Cases: Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia (2023) INSC 146 (20 February 2023)

Introduction

Date of the Judgment: 20 February 2023

Citation: (2023) INSC 146

Judges: V. Ramasubramanian, J., B.V. Nagarathna, J. (Majority Opinion by 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 a divorce case? The Supreme Court of India recently addressed this critical question, highlighting the importance of protecting children’s rights and clarifying the legal framework surrounding DNA testing in matrimonial disputes. The court emphasized the need to balance the rights of the parties with the well-being of the child, particularly when it comes to issues of legitimacy and privacy.

The Supreme Court, in this judgment, explored the complex interplay between the presumption of legitimacy of a child born during a valid marriage and the use of DNA evidence to prove adultery. The court also examined whether an adverse inference can be drawn against a party who refuses to subject their child to a DNA test. This case clarifies the circumstances under which a court can order a DNA test in family law matters, especially concerning allegations of adultery.

Case Background

The case involves a couple, Aparna Ajinkya Firodia (appellant-wife) and Ajinkya Arun Firodia (respondent-husband), who married on 23rd November 2005, according to Hindu rites in Pune. They had two sons: Master “Y”, born on 21st December 2009, and Master “X”, born on 17th July 2013. The respondent-husband filed for divorce on 1st June 2017, under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955, alleging that the appellant-wife was in an adulterous relationship with one Kshitij Bafna, which he discovered on 14th September 2016. In the divorce petition, the respondent also sought custody of both children.

On 9th November 2020, the respondent-husband filed an application seeking a direction to subject Master “X” to a DNA test to ascertain his paternity, claiming that the child was born out of the appellant’s adulterous relationship. He also presented a DNA test report from a private laboratory, DNA Labs India, dated 24th November 2016, which indicated a 0% probability of him being the biological father of Master “X”.

The appellant-wife opposed the application, arguing that the respondent had not established a prima facie case to justify a DNA test. The Family Court, Pune, allowed the respondent’s application on 12th August 2021. The High Court of Judicature at Bombay upheld this order on 22nd November 2021. The appellant-wife then appealed to the Supreme Court against these orders.

Timeline

Course of Proceedings

The Family Court, Pune, allowed the husband’s application for a DNA test, relying on a private DNA report that excluded the husband as the biological father of Master “X”. The Family Court also stated that if the wife refused to comply with the DNA test, an adverse inference would be drawn against her, as per Section 114 of the Indian Evidence Act, 1872. The Family Court also relied on the decision of the Supreme Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik, (2014) 2 SCC 576, to hold that Section 112 of the Indian Evidence Act, 1872, was enacted before the advent of sophisticated DNA testing and that scientific evidence should prevail over legal presumptions.

The High Court of Judicature at Bombay upheld the Family Court’s order, stating that the husband had laid a strong foundation for the DNA test by producing the private DNA report. The High Court also held that the fundamental rights under Article 21 of the Constitution of India are subject to reasonable restrictions and that a direction for a DNA test does not violate personal liberty. The High Court also stated that the presumption under Section 112 of the Indian Evidence Act, 1872, is rebuttable and that the husband had demonstrated a prima facie case to justify the DNA test.

Aggrieved by these orders, the appellant-wife appealed to the Supreme Court, arguing that the lower courts failed to appreciate the need for a strong prima facie case before directing a DNA test and that the orders were contrary to the presumption under Section 112 of the Indian Evidence Act, 1872, and the fundamental rights guaranteed under Article 21 of the Constitution of India.

Legal Framework

The judgment primarily revolves around the interpretation of the following provisions of the Indian Evidence Act, 1872:

• Section 4: Defines “conclusive proof” as a situation where, upon proof of one fact, the court must regard the other fact as proven and cannot allow evidence to disprove it.

• Section 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.” This section establishes that a child born during a valid marriage is conclusively presumed to be the legitimate child of the husband, unless it can be proven that the couple had no access to each other at the time of conception.

• Section 114: “Court may presume existence of certain facts. –– 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.” This section allows the court to presume the existence of certain facts based on common sense and experience. Illustration (h) of this section states: “(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 Supreme Court also considers the interplay of these provisions with the fundamental rights guaranteed under Article 21 of the Constitution of India, particularly the right to privacy and personal liberty. The court also considers the principles laid down in the Convention on the Rights of the Child, which emphasizes the best interests of the child.

Arguments

Appellant (Wife)’s Submissions:

• The High Court erred in upholding the Family Court’s direction for a DNA test, as the respondent failed to demonstrate an “eminent need” for the test, as required by Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418. The appellant argued that Indian law leans towards legitimacy, and DNA tests should only be ordered when absolutely necessary, balancing the interests of all parties, including the child.

• The High Court’s observation that the child’s interests would not be jeopardized by the DNA test, based solely on the respondent’s statement that he would not disown the child, was insufficient. The appellant contended that the societal repercussions of illegitimacy on the child are significant and that the DNA test was sought by the respondent solely for his own interests, without considering the child’s welfare.

• The respondent failed to establish non-access at the relevant time, which is necessary to dislodge the presumption under Section 112 of the Indian Evidence Act, 1872. The appellant relied on Goutam Kundu, Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, and Ashok Kumar vs. Raj Gupta, (2022) 1 SCC 20, to argue that strong prima facie evidence of non-access is required to rebut the presumption of legitimacy. She also cited Perumal Nadar (dead) by Lrs. vs. Ponnuswami, (1970) 1 SCC 605, to emphasize the need for clear evidence of non-access.

• The respondent’s reliance on a private DNA test report dated 24th November 2016, was flawed, as the authenticity of the report has to be established during trial. The appellant argued that allowing such reports to be used as a basis for ordering DNA tests would encourage the production of unauthenticated reports, which could be detrimental to the child.

• The issue of legitimacy is inextricably linked to allegations of adultery and should not be trifled with merely at the respondent’s request. The presumption of legitimacy must be preserved by the courts.

Respondent (Husband)’s Submissions:

• The High Court and Family Court orders were based on a sound appreciation of facts and law, and therefore, the Supreme Court should not interfere. The respondent argued that the appeal was an abuse of the process of law, filed to mask the appellant’s adulterous conduct.

• The respondent relied on Uday Chand Dutt vs. Saibal Sen, (1987) Supp SCC 506, to argue that concurrent findings of the Family Court and High Court should not be interfered with.

• A judgment in a matrimonial proceeding is a judgment in rem, and any evidence to bring out the truth is germane to the matter and cannot be ignored, as per Section 41 of the Indian Evidence Act, 1872. The issue is one of a fair trial for both parties.

• Section 112 of the Indian Evidence Act, 1872, does not prevent courts from directing DNA tests in deserving cases. The respondent relied on Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365, to argue that the court can direct DNA tests while preserving the presumption under Section 112 of the Indian Evidence Act, 1872.

• The DNA test is the most material piece of evidence to establish adultery and should not be shut out on grounds of sensitivity or privacy. The respondent relied on Sharda vs. Dharmpal, (2003) 4 SCC 493, to argue that a court-ordered medical test does not violate the right to personal liberty under Article 21 of the Constitution of India.

• The Family Court passed the order for a DNA test after considering prima facie evidence, including a private DNA report that ruled out the respondent as the biological father of the child. The Family Court was correct in accepting the private DNA test report under Section 14 of the Family Courts Act, 1984.

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, rightly appreciated Section 112 of the Indian Evidence Act, 1872, in directing that a DNA test of Master “X” be conducted?
2. Whether, on non-compliance on the part of the appellant of the direction to subject Master “X” to a DNA test, allegations of adultery as against her could be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114 of the Indian Evidence Act, 1872?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities while deciding the case:

The Court also referred to the following legal provisions:

• Section 4 of the Indian Evidence Act, 1872: Definition of “conclusive proof”.

• Section 112 of the Indian Evidence Act, 1872: Conclusive proof of legitimacy.

• Section 114 of the Indian Evidence Act, 1872: Court may presume existence of certain facts.

• Section 14 of the Family Courts Act, 1984: Power of Family Courts to consider reports and documents.

• Article 21 of the Constitution of India: Right to personal liberty.

• Article 3 of the Convention on the Rights of the Child: Best interests of the child.

Judgment

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

How each authority was viewed by the Court?

• The Court followed the principles laid down in Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418, regarding the conditions for ordering blood tests in paternity disputes.
• The Court distinguished the facts of the case from Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik, (2014) 2 SCC 576, stating that in the present case, no DNA test was conducted by the court.
• The Court followed the principles laid down in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, emphasizing the need for “eminent need” for DNA testing.
• The Court followed the principles laid down in Ashok Kumar vs. Raj Gupta, (202 2022) 1 SCC 20, regarding the need for strong evidence of non-access.
• The Court followed the principles laid down in Perumal Nadar (dead) by Lrs. vs. Ponnuswami, (1970) 1 SCC 605, regarding the need for clear evidence of non-access.
• The Court distinguished the facts of the case from Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365, noting that in the present case, the respondent had other means to prove adultery.
• The Court acknowledged the power of matrimonial courts to order medical tests as laid down in Sharda vs. Dharmpal, (2003) 4 SCC 493, but emphasized that such power should be exercised judiciously.
• The Court acknowledged that concurrent findings of lower courts should not be interfered with lightly as laid down in Uday Chand Dutt vs. Saibal Sen, (1987) Supp SCC 506, but emphasized that the present case involved a misinterpretation of the law.
• The Court followed the principles laid down in Kamti Devi vs. Poshi Ram, (2001) 5 SCC 311, regarding the proof of non-access at the time of conception.
• The Court followed the principles laid down in Sham Lal vs. Sanjeev Kumar, (2009) 12 SCC 454, regarding the presumption of legitimacy based on public morality and policy.
• The Court followed the principles laid down in Inayath Ali vs. State of Telangana, MANU/SC/1538/2022, that DNA tests should not be ordered on children when their status is not directly in question in the proceedings.
• The Court followed the principles laid down in Dukhtar Jahan vs. Mohammed Farooq, (1987) 1 SCC 624, that courts should be inclined towards upholding the legitimacy of a child.
• The Court distinguished the facts of the case from Sahara India Real Estate Corporation Limited & Ors. vs. Securities and Exchange Board of India & Anr., (2012) 10 SCC 603, noting that the right to fair trial cannot override the rights and best interests of a third party (the child) in a matrimonial dispute.

Final Decision

The Supreme Court allowed the appeal and set aside the orders of the Family Court, Pune, and the High Court of Judicature at Bombay. The Court held that the lower courts had erred in directing a DNA test of Master “X” and that no adverse inference could be drawn against the appellant-wife for refusing to subject her child to a DNA test. The Court emphasized that the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872, is a crucial aspect of the law and that DNA tests should not be ordered routinely in matrimonial disputes. The Court also highlighted the importance of protecting the rights and best interests of the child.

Key Takeaways

• Presumption of Legitimacy: The Supreme Court reaffirmed the importance of the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872. This presumption is a cornerstone of family law, and it should not be easily disregarded.

• DNA Tests as a Last Resort: DNA tests should not be ordered routinely in matrimonial disputes. They should only be ordered when there is a strong prima facie case of non-access and when all other means of establishing the truth have been exhausted. The court must consider the best interests of the child before ordering a DNA test.

• Adverse Inferences: No adverse inference can be drawn against a party for refusing to subject their child to a DNA test. The issue of paternity is distinct from the issue of adultery, and the best interests of the child should always be the primary consideration.

• Protection of Children’s Rights: Children should not be treated as material objects in a dispute between their parents. Their rights and well-being must be protected at all times.

• Burden of Proof: The burden of proving non-access lies on the party seeking to rebut the presumption of legitimacy. This burden is a heavy one, and it cannot be discharged by mere allegations.

• Private DNA Reports: Private DNA reports should not be relied upon as a basis for ordering DNA tests. The authenticity of such reports must be established during trial, and the court must ensure that the reports are obtained through a proper procedure.

• Balancing Rights: The court must balance the rights of all parties involved in a matrimonial dispute, including the rights of the child. The right to a fair trial cannot override the rights and best interests of a third party, such as a child.

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