Recently, the Bombay High Court set aside an order of the Family Court directing a minor child to undergo a DNA test to determine paternity, holding that such a direction was unwarranted in the absence of a clear plea of non-access or denial of paternity by the father. The Court emphasized that the presumption under Section 112 of the Indian Evidence Act remains conclusive unless cogent evidence is produced to rebut it, and a DNA test cannot override such a presumption merely on allegations of infidelity.
Brief Facts:
The petitioner and the respondent were married, and during the subsistence of their marriage, a child was born. Subsequently, matrimonial discord led to legal proceedings between them. The respondent-husband made allegations of adultery against the petitioner-wife. However, at no point during any of the pleadings or legal proceedings did the respondent challenge the paternity of the child or claim that he had no access to his wife during the relevant period of conception. Despite this, the Family Court directed that a DNA test be conducted on the child.
Contentions of the Petitioner:
The Counsel for the petitioner contended that the Family Court’s order directing a DNA test was illegal and against the settled principles of law. It was argued that the respondent had never raised a plea disputing paternity or claiming non-access at the time of conception. The petitioner further emphasized that the minor child’s rights and privacy cannot be compromised merely to satisfy allegations arising out of matrimonial discord.
Observations of the Court:
The High Court, referring to the mandate of Section 112 of the Indian Evidence Act, held, “If a person is able to establish that the parties to the marriage had no access to each other at any time when the child could have been begotten, the legitimacy of such child can be denied. That is, it must be proved by strong and cogent evidence... unless the absence of access is established, the presumption of legitimacy cannot be displaced.”
The Court noted that mere allegations of adultery by the wife are insufficient to rebut the conclusive presumption of legitimacy. It stressed that, “Even the result of a genuine DNA test cannot escape from the conclusiveness of the presumption under Section 112 of the Evidence Act... What is necessary to rebut is the proof of non-access at the time when the child could have been begotten.”
Further, the Court observed that in this case, the respondent had at no point, neither in notices, pleadings before the Family Court, nor in cross-examination, denied paternity or claimed non-access. Thus, there was no factual foundation for directing a DNA test. It was noted that, “In case of a minor child, he/she is not capable of taking decision of agreeing to the test or refusal thereof. More particularly, when the parents of such child are fighting against each other... the Court must become the custodian of rights of minor child.”
The Family Court’s reasoning that the child’s paternity should be tested in light of alleged adultery was, according to the High Court, both legally and factually flawed.
The decision of the Court:
The High Court held that the Family Court had erred in law and facts by directing a DNA test in the absence of a specific plea of non-access or denial of paternity by the father. It ruled that such a direction was not warranted and would adversely affect the rights of the minor child. Accordingly, the petition was allowed, the impugned order of the Family Court was set aside, and the application seeking the DNA test, stood dismissed.
Case Title: xxx vs. yyy
Case No: Writ Petition No. 3499 of 2020
Coram: Justice R.M Joshi
Counsel for the Petitioner: Adv. M.P. Kariya
Counsel for the Respondent: Adv. S.S. Bhalerao
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