Delhi High Court: An appeal was filed by the husband (appellant) challenging the rejection of his application seeking a paternity test for the child born to the wife (respondent). A division bench of Rajiv Shakder and Amit Bansal, JJ., dismissed the appeal and decided not to interfere with the Family Court rejection order as it would impact the child’s interests through a paternity test.
The marriage between the parties occurred on 05-10-2008. The wife gave birth to a male child on 18-07-2014. The divorce petition filed by the husband on 31-01-2020, citing cruelty. The wife filed a petition under the Domestic Violence Act on 21-08-2020. The amendments to the divorce petition sought on 03-11-2020 by the husband alleging azoospermia, a medical term for no sperm count. The Family Court allowed amendments on 11-11-2022, with costs to be paid to the wife. An application was filed by the husband seeking direction from the Family Court to the effect that the wife and the child should be asked to give their blood samples so that the minor child’s paternity could be ascertained. The Court declined the request on the ground that since the appellant/husband lived with the respondent/wife between 2008, when the marriage took place, and 2019, when they started living separately, the paternity of the child could not be questioned given the presumption that the law makes under Section 112 of The Indian Evidence Act, 1872.
The Court noted that the husband had not referred to the fact that because he was suffering from azoospermia, the wife could not have conceived a child except through in-vitro fertilization [IVF] or via a sperm donor. This aspect was introduced in and about 03-11-2020 via an amendment application, which was allowed on 11-11-2022. The Court also said that Azoospermia is a condition where a person’s ejaculate does not contain spermatozoa, i.e., thus, there is an absence of live spermatozoa in the semen. Thus, the husband’s endeavour to establish that the respondent/wife had sexual intercourse voluntarily with a person other than the appellant/husband — is an aspect which may become the subject matter of trial before the Family Court.
The Court further noted that the husband cannot, by a sidewind, impact the interest of the child who is not a party to the proceedings. The Family Court would have to consider the evidence that the parties may lead to arrive at a conclusion, as suggested by the husband, that the wife had sexual intercourse voluntarily with a person other than the husband. Whether or not the wife had had an adulterous relationship could be gone into without subjecting the child to a paternity test.
The Court remarked that “What also weighs against the husband is that he chose not to question the paternity of the child till November 2020, when an application was preferred to seek amendments in the divorce action instituted by him. Thus, whether the wife had been involved in an adulterous relationship, as alleged, is an aspect that will have to go to trial.”
The Court dismissed the petition without interfering with the Family Court order.
[Gagandeep Singh v. Bhumika, 2024 SCC OnLine Del 611, decided on 31-01-2024]
Advocates who appeared in this case:
Mr Ashish Negi, Advocate for appellant-husband
