Kerala High Court: A.Muhamed Mustaque and Kauser Edappagath, JJ., addressed an interesting question of law,
Can a direction to undergo DNA Test be given in proceedings for divorce to establish the husband’s assertion of infidelity and adultery on the part of the wife without the child in the party array?
The husband of respondent 1 had preferred for dissolution of marriage on the ground of cruelty, desertion and adultery and for recovery of money and gold ornaments while respondent 1 had preferred for recovery of money at the Family Court. The main allegation of the petitioner was that his wife had been living adulterous life with respondent 2 (brother-in-law of respondent 1) and the child born to her was that of respondent 2.
To prove infidelity and adulterous act on the part of his wife, the petitioner had taken a specific plea that he was suffering from infertility and incapable to have a child. An application to conduct DNA test had been filed by the petitioner to prove that he was not the father of the child, however, the request was dismissed by the Court below on the ground that the child was a necessary party to the petition and without the child on the party array, its paternity and legitimacy could not be determined.
Presumption of Legitimacy
Placing reliance on Section 112 of the Indian Evidence Act, the wife of the petitioner argued that once the validity of marriage is proved, there is strong presumption about the legitimacy of children born from that wedlock and the presumption could only be rebutted by strong and conclusive evidence. Similarly, non access between the husband and wife is the only way to dislodge the conclusive presumption enjoined by Section 112 of the Evidence Act, hence, the prayer for DNA test could not be allowed in the absence of strong prima facie proof of non access.
Allegation of Infidelity
Noticeably, after 22 days of the marriage the petitioner had to left for his place of work at Ladakh as he was employed at military service and during those 22 days or thereafter there was no physical relationship between them due to the non co-operation of respondent 1. The definite case of the petitioner was that he was suffering from infertility and there was no possibility for him to have a child.
Opinion of the Court
In Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365, the Supreme Court had held that, “DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondenthusband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so.”
Similarly, in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576, the Supreme Court took the view that the result of a genuine DNA test is scientifically accurate and when there is conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.
Relying on the decisions of the Supreme Court, the Court opined that it would be permissible for a court to direct the holding of a DNA examination, to determine the veracity of the allegations constituting the grounds for divorce if a strong prima facie case is made out.
Can legitimacy of a child be determined without the child being on the party array?
The Bench explained that there are two tests for determining the question whether a particular party is a necessary party to the proceedings or not:
- There must be a right to some relief against such party in respect of the matter involved in the proceedings in question; and
- It should not be possible to pass an effective decree in the absence of such a party.
Hence, since original petition was not one under S.7 (1) r/w Explanation (e) of the Family Courts Act for a declaration as to the legitimacy of any person and it was a petition only for dissolution of marriage u/s 13 of the Hindu Marriage Act, the Bench held that the presence of child does not have any bearing whatsoever in deciding the petition for dissolution of marriage on merit. Answering the question referred in affirmative, the Bench stated,
“The illegitimacy or paternity of the child is only incidental to the claim for dissolution of marriage on the ground of adultery or infidelity. The child’s presence is not necessary to adjudicate the relief claimed.”
In the backdrop of above, the Bench allowed the petitioner to conduct DNA test of the petitioner as well as the son of the respondent 1. [XXX v. XXX, 2021 SCC OnLine Ker 3458, decided on 14-09-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioner: Advocate Sindhu Santhalingam and Advocate A.D.Shajan
For the Respondents: Advocate Brijesh Mohan, Advocate Shajin S.Hameed and Advocate Resmi G. Nair