Husband's suspicion of adultery by wife no ground to make child undergo paternity test: Bombay HC

The allegation that the wife was leading an adulterous life can be established through means other than subjecting the child to undergo a DNA test. (Representative Image: AP)

A minor child cannot be made to undergo a DNA test to confirm paternity merely because a man suspects his wife of adultery, the Nagpur bench of the Bombay High Court ruled, quashing a family's court order that directed a DNA test based on the husband's plea.

In its order dated July 1 and made available on Wednesday, a single-judge bench of Justice RM Joshi said that since the minor child is not capable of deciding whether to agree or refuse the DNA test, and when the parents of such child are fighting against each other, it becomes the court's responsibility to act as the 'custodian' of the rights of the child and consider the pros and cons before calling upon the minor to undergo the test.

The court was hearing an appeal filed by a woman challenging the February 7, 2020 order passed by a family court, ordering a DNA test of the woman's child born on July 27, 2013. The family court had allowed an application filed by the woman's estranged husband who disputed the paternity of the child on the ground that his wife was living an 'adulterous' life and that she begot the child only after she started living separately.

The wife, however, argued that she was already three months pregnant when she left the matrimonial house of her husband.

"The allegation of the husband is that he is entitled for decree of divorce for the reason that his wife is /was living an adulterous life. A question arises as to whether, this is an eminent case for passing order of DNA test. The candid answer to the same would be emphatic no," Justice Joshi said.

Explaining the reason for this, Justice Joshi said that unless the husband disputes that he is the father of the child and makes out a specific case of having no access to wife and rebuts presumption under Section 112 of the Indian Evidence Act, the question of determining the paternity of the child does not arise.

"Even, if it is accepted for the sake of argument that the wife conceded the said request, still it was absolutely obligatory for the Court to consider best interest of the child. As held by the Supreme Court, no one can be compelled to undergo blood test," the court noted in its order.

"Though, the judgment of the Supreme Court cited by the husband indicates importance and even accuracy of scientific DNA Profiling Test, still question arises as to whether the presumption of conclusive proof of legitimacy can be dislodged on this ground, when father does not satisfy the condition of he having no access to mother of the child during relevant time."

"Secondly, if there is allegation against the wife that she lives adulterous life, the said fact can be proved by any other evidence than calling upon the child to undergo the paternity test," the court observed.