Rajasthan High Court red flags DNA/Paternity test to establish ground of ‘Adultery’ for divorce

Rajasthan High Court red flags DNA/Paternity test to establish ground of ‘Adultery’ for divorce

Recently Hon’ble Rajasthan High Court has dismissed the writ petition filed by the petitioner/husband seeking quashment of order passed by learned Family Court wherein learned Judge has refused to allow Order 6 Rule 17 (amendment of Pleading) application of petitioner by which he wanted to add adultery as a ground on the basis of certain DNA report in his application U/s. 13, Hindu Marriage Act.

BRIEF FACTS OF THE CASE

Petitioner-husband filed an application (registered as Case no.83/2019) under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘Act of 1955’), seeking a divorce decree, before the learned Family Court, Bhilwara, against respondent-wife; the same was further transferred to the learned Family Court No.1, Udaipur, and registered as Case No.757/2019 in the said Court. The ground, as raised in the application under Section 13 of the Act of 1955, was cruelty, and not adultery.

During pendency of the divorce application, the petitionerhusband preferred an application therein under Order 6 Rule 17 read with Section 151 Code of Civil Procedure, 1908 (in short, ‘CPC’) seeking to add para nos. 12A and 12B as well as ground A1 in the pleading of the application under Section 13 of the Act of 1955, on the basis of the Deoxyribonucleic Acid (DNA) Paternity Test Report dated 11.09.2019 (as annexed with the said application), of the child (son), while claiming the same to be a subsequent development in the case before the learned Family Court. The wife of the petitioner filed her detailed reply. The learned court below rejected the petitioner’s application vide order dt. 15.11.2022.

CONTENTION OF PETITIONER

Learned Senior Counsel for the petitioner-husband submitted that the DNA Paternity Test Report dated 11.09.2019 clearly reveals that the petitioner-husband is not the father of the child (son) and Family Court, dealing with matrimonial matters, has the power to order conducting of the medical test, owing to the issue involved in a particular case, and the same would certainly not amount to violation of the right to personal liberty, of any person, as enshrined under Article 21 of the Constitution of India.

He further submitted that a person can be lawfully compelled to undergo DNA Paternity Test in a matrimonial matter for the purpose of proving or disproving the paternity in question. In support of such submission, reliance has been placed on the judgment rendered by the Hon’ble Apex Court in the case of Sharda Vs. Dharmpal (2003) 4 SCC 493, and the judgment rendered by the Hon’ble Madras High Court in the case of Bommi & Ors. Vs. Munirathinam (C.R.P. No. 2710 of 2003, decided on 28.07.2004).

Learned Senior Counsel also submitted that the DNA Paternity Test is the most important method for the purpose of determining the paternity of a child, and thus, the same can be claimed as a matter of right, and cannot be denied by any person; as regards the present case, the DNA Paternity Test, as conducted, clearly shows that the petitioner-husband is not the father of the child (son). He further relied on Dipanwita Roy Vs. Ronobroto Roy (2015) 1 SCC 365 to support his contentions.

Reliance has also been placed on the judgment rendered by the Hon’ble Apex Court in the case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Ors. (2014) 2 SCC 576; relevant portion whereof, as relied by learned Senior Counsel, reads as under:

“19. The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.”

Further he also relied on Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commissioner for Women & Ors. (2010) 8 SCC 633.

HON’BLE COURT’s OBSERVATIONS

At the outset Hon’ble Mr. Justice Pushpendra Singh Bhati while considering the case laws cited by the petitioner’s counsel observed that :-

“5.3. The judgments cited on behalf of the petitioner-husband have either been reversed by the Hon’ble Apex Court in the judgment rendered in Aparna Ajinkya Firodia Vs Ajinkya Arun Firodia (Arising out of SLP (C) No.9855/2022, decided on 20.02.2023), or the said judgments do not apply in the current factual perspective”

Hon’ble court then extensively quoted the relevant portion of the aforementioned judgment, relevant extract is quoted below :-

“6…………… Section 112 embodies the rule of law that the birth of a child during the continuance of a valid marriage or within 280 days (i.e., within the period of gestation) after its dissolution shall be “conclusive proof” that the child is legitimate unless it is established by evidence that the husband and wife did not or could not have any access to each other at any time when the child could have been conceived. The object of this provision is to attach unimpeachable legitimacy to children born out of a valid marriage.

The principle underlying Section 112 is to prevent an unwarranted enquiry as to the paternity of the child whose parents, at the relevant time had “access” to each other.

8.2. Further, “access” or “non-access” does not mean actual cohabitation but means the “existence” or “nonexistence” of opportunities for sexual relationship. Section 112 refers to point of time of birth as the crucial aspect and not to the time of conception. The time of conception is relevant only to see whether the husband had or did not have access to the wife. Thus, birth during the continuance of marriage is “conclusive proof” of legitimacy unless “non-access” of the party who questions the paternity of the child at the time the child could have been begotten is proved by the said party.

8.4. ……………………. The fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a child. Therefore, shreds of evidence to the effect that the husband did not have intercourse with the wife at the period of conception, can only point to the illegitimacy of a child born in wedlock, but it would not uproot the presumption of legitimacy under Section 112.

24. Questions as to illegitimacy of a child, are only incidental to the claim of dissolution of marriage on the ground of adultery or infidelity necessary. This is not a case where a DNA test is the only route to the truth regarding the adultery of the mother. If the paternity of the children is the issue in a proceeding, DNA test may be the only route to establish the truth. However, in our view, it is not so in the present case. The evidence of DNA test to rebut the conclusive presumption available under Section 112 of the Evidence Act, can be allowed only when there is compelling circumstances linked with ‘access’, which cannot be liberally used as cautioned by this Court in Dipanwita Roy (supra).
25. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel for the appellant, the question as to whether a DNA test should be permitted on the child, is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the respondent husband to prove by other evidence, the adulterous conduct of the wife, but the child’s right to identity should not be allowed to be sacrificed.”

Further the Hon’ble Court also placed reliance on judgment rendered by the Hon’ble Bombay High Court at Nagpur Bench in Criminal Writ Petition No. 66 of 2022, Decided on 10.03.2023) and Hon’ble Himachal Pradesh High Court in the case of Anil Kapoor Vs Dipika Chauhan (Civil Revision No. 66 of 2022, decided on 01.04.2023)

Hon’ble court further observed that “the petitionerhusband’s marriage was solemnized in the year 2010 with the respondent-wife, and the child (son) was born on 13.04.2018; the wife left her husband’s (petitioner’s) house on 05.01.2019. The record of the case clearly reveals that the petitionerhusband and the respondent-wife were living together at the time of birth of the child (son), and thus, the petitionerhusband was having access for cohabitation; thus, the question regarding presumption under Section 112 of the Indian Evidence does not even arise in the present case.”

Hon’ble court further while examining the question that whether litigation between the petitioner and wife should require paternity test to prove any point pertaining to adultery observed that :-

“(i) This Court observes that the act of adultery has already been decriminalized by the Constitution Bench of the Hon’ble Apex Court in the judgment rendered in the case of Joseph Shine Vs Union of India (2019) 3 SCC 39. This Court also observes that any Matrimonial (Civil) dispute between the husband and wife pertaining to the child born from the wedlock, cannot be used for their own benefit by way of DNA Paternity Test, among other things.

(ii) This Court is quite conscious of the fact that any frivolous claim of the husband or wife would have much adverse affect on the mental health of the child; though the husband has a right to prove adultery on the strength of cogent evidence against his wife.

(iii) This Court also observes that the DNA Paternity Test requires to be conducted only in exceptional cases, and therefore, the child cannot be used as a weapon to get divorce on ground of adultery, on the strength of outcome of a DNA Paternity Test”

Hon’ble court further observed that DNA Paternity test can only be done in rarest of rare case and it cannot be allowed in a routine manner.

Before dismissing the writ petition, the Hon’ble court observed that :-

“12. This case has to be seen through the prism of the child and not through the prism of the cantankerously fighting parents. This Court is of the firm opinion that the child cannot be used as a pawn in a divorce litigation, where either of the parents want to get rid of the spouse, while sacrificing the crucial rights of the child to a dignified parenthood, which shall not only cause an unfathomable misery upon the rights of the child, but also create a permanent dent in his existence/Psyche

13. The pain of winning or losing a battle of divorce amongst the contesting spouses is much trivial when compared with the rights of the child to have dignity and parenthood.
14. Therefore, while choosing between the sanctity of marriage and sanctity of the childhood, the Court has no option but to tilt towards the sanctity of the life, i.e. tilting towards the sanctity of the childhood. The parties may or may not lose the marriage, but the spirit of justice cannot afford to lose the child/childhood, as no Court can shut its eyes, so as only to achieve the goal of justice in matrimonial redressals, while losing the battle of parenthood, being detrimental to the childhood.”

Case no. :- S.B. Civil Writ Petition No. 1015/2023 (Jodhpur Bench)

Order date :- 26.05.2023