In a landmark judgment, the Rajasthan High Court has refused to allow the DNA paternity test as a ground to prove adultery in the divorce proceedings of a couple belonging to Bhilwara. The court said the child born to the couple could not be used as a pawn in the divorce litigation and the “sanctity of childhood” could not be compromised with.
“The child cannot be used as a weapon to get divorce on the basis of adultery, on the strength of a DNA paternity test. This test cannot be conducted in a routine and mechanical manner because it will adversely affect the very mental health of the child,” Justice Pushpendra Singh Bhati at the High Court’s principal seat in Jodhpur said in his recent judgment.
The court handed down the verdict on a writ petition moved by Deepak Soni, a resident of Bhilwara, seeking quashing of a November 15, 2022 order of the Family Court in Udaipur, which had rejected his plea to amend his divorce pleading on the basis of DNA paternity test of his son. The divorce application filed under Section 13 of the Hindu Marriage Act had raised cruelty, and not adultery, as the ground for seeking divorce.
Justice Bhati observed that the conducting of DNA paternity test could only be directed when the case fell outside the presumption under Section 112 of the Indian Evidence Act, which states that the birth of a child during marriage is a conclusive proof of legitimacy. The legal provision says that the birth during the continuance of a valid marriage makes a child legitimate unless the parents had no access to each other.
The petitioner’s marriage was solemnised in 2010 and the son was born on April 13, 2018, after which his wife left the house in 2019. The Judge said both the husband and wife were living together at time of the child’s birth and had access for cohabitation. Therefore, the DNA paternity test was unwarranted in the divorce case and it could be done only in exceptional circumstances., the court ruled.
While the petitioner contended that the DNA paternity test report had shown that he was not the child’s father, the court stated that it was conducted without taking the child or his mother into confidence.
“The Family Courts have the power to order for DNA test, but it should not be directed in a routine manner without any justifiable reason. It should be done after duly complying with the principles of natural justice. The husband cannot take undue advantage of the test so as to shirk away from his obligation as the father of the child,” the court ruled in its 24-page judgment.
The court relied on the Supreme Court’s judgment in the case of Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia, delivered on February 20 this year, for reaching its conclusions. Any frivolous claim of the husband or wife would have much adverse impact on the mental health of the child, though the husband had a right to prove adultery on the strength of cogent evidence against his wife, the Judge ruled.
While refusing to grant any relief to the petitioner in the ongoing divorce case, the court said the DNA test would invade upon the rights of a child, including his property rights, right to lead a dignified life, right to privacy and right to have the confidence and happiness of being showered with love and affection by both the parents.
“The pain of winning or losing a battle of divorce among the contesting spouses is much trivial when compared with the rights of the child to have dignity and parenthood... While choosing between the sanctity of marriage and sanctity of the childhood, the court has to tilt towards the latter,” the court said.
The Judge said the spirit of justice could not afford to lose the child, as no court could shut its eyes to the matrimonial redressal being detrimental to childhood. “Sacrificing the crucial right of the child to a dignified parenthood will not only cause a misery to him, but will also create a permanent dent in his psyche,” Justice Bhati said.
