On Tuesday, the Supreme Court said that DNA tests cannot be ordered to establish the legitimacy of a child born during the subsistence of a marriage if there is no primary evidence of adultery.
A bench of Justices Vineet Saran and Dinesh Maheshwari set aside the orders of a lower court and Bombay high court which had allowed a plea of a man to order DNA test of his child in a matrimonial dispute with his wife after he alleged that he was not the biological father and that his wife had physical relations with other men.
Referring to Section 112 of the Indian Evidence Act which talks about presumption of the legitimacy of a child, the bench said that DNA test could not be straightaway ordered to prove adultery and the lower court and the high court erred in passing the order. The court said there must be some primary evidence to prove the adultery allegation and only then the court can consider going for the scientific evidence of DNA testing.
“Where is the primary evidence? Straightaway DNA test cannot be done. You have to show some primary evidence,” the bench told the man’s counsel Manisha Karia who had contended that the order passed by the HC was right.
The couple had got married in 2008 and a daughter was born in 2011. Six years later, the husband filed a divorce petition.
Subsequently, he filed an application before the family court for the DNA testing of the child. The petitioner said he had not raised doubts on the legitimacy of the child in his divorce petition as he was under the impression that he was the biological father but later on “realised that there was no possibility that he was the cause of (the girl’s) birth, as he had been using protection whenever she allowed him to be physically intimate”.
The lower court allowed his plea which was upheld by HC and the wife then moved SC. Senior advocate Devadatta Kamat, appearing for the wife, told the bench that no allegation of adultery was made in the divorce petition filed by the husband and not one averment was made in that petition. He said that the allegation levelled against her was baseless.
The court, after hearing both sides, quashed the order for the DNA test and said, “In the absence of primary evidence by the respondent in the case of adultery, the conduct of a DNA test which is the secondary evidence ought not have been passed. We set aside the order”.
The bench, however, suggested that the parties to go for a divorce settlement instead of raising the issue of adultery and DNA test again in a lower court.
As the counsel appearing for both the parties agreed to convince their clients, the bench posted the hearing for Wednesday to settle the dispute.