Bombay High Court rules that suspicion of a wife’s adultery is no ground for forcing a minor to undergo a DNA test, prioritizing the child’s rights and welfare in paternity disputes.
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MUMBAI: The Bombay High Court recently quashed a family court’s order directing a DNA test on a 12-year-old boy to determine paternity. Justice R.M. Joshi ruled that mere suspicion of a wife’s adultery does not justify subjecting a minor to a genetic test.
In his July 1 order, the judge emphasized that such tests are permitted only in exceptional circumstances. He noted that the man seeking divorce on adultery grounds never denied being the child’s father and that adultery can be proven by other means.
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The petition was filed by the estranged wife and her son, challenging the 2020 order. The High Court found the family court had failed to consider the child’s best interests and reiterated that minors cannot be compelled to undergo such tests, especially amid parental disputes. The court stressed its duty to protect the rights and welfare of children caught in such conflicts.
Background and Facts of the Case
The petitioner wife and the respondent husband were married on 18th December 2011. On 19th January 2013, the wife left the matrimonial home while three months pregnant.
Shortly after, the husband issued a notice requesting her return and subsequently filed a petition for judicial separation on 8th February 2013 before the Family Court, Nagpur.
In response, the wife filed a petition seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Though the husband withdrew his judicial separation plea, he later filed for divorce on grounds of adultery, cruelty, and desertion, and both petitions are being jointly heard.
Their child was born on 27th July 2013. The husband raised doubts about the wife’s chastity and sought a DNA test of the child, which was initially rejected by the Judicial Magistrate in 2016.
However, during the stage of recording evidence, the husband again moved an application for DNA profiling to determine the child’s legitimacy, which the Family Court allowed. Aggrieved by this order, the wife filed the present petition before the High Court.
Arguments by the Parties
Petitioner:
The counsel for the petitioner argued that the Family Court erred in allowing the DNA test application based solely on the wife’s statement during cross-examination, where she said she would abide by the court’s direction if a DNA test was ordered.
He contended that this does not amount to consent and cannot justify the order. Emphasizing that DNA profiling should be allowed only in exceptional cases, he maintained that this case does not meet that threshold.
The counsel pointed out that the husband never denied access to the wife during the relevant period, weakening the basis for a paternity dispute.
He also highlighted that in the husband’s notice dated 28th January 2013, there were no allegations of adultery, and it indicated his awareness of the wife’s three-month pregnancy.
Hence, there was no genuine doubt raised about the paternity of the child, and the impugned order deserves to be set aside.
Respondent:
The counsel for the respondent-husband supported the Family Court’s order allowing a DNA test, relying on Supreme Court judgments including Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, and other cases to argue that scientific advancements like DNA testing should override outdated presumptions under Section 112 of the Indian Evidence Act.
He contended that when such reliable methods exist to ascertain paternity, the court should not hesitate to permit them. The respondent emphasized that Section 112 was enacted prior to the advent of DNA technology and must be interpreted in today’s scientific context.
He also pointed out that the Family Court had safeguarded the interests of the child by directing compensation in case the DNA test confirmed the husband’s paternity.
Accordingly, the respondent was willing to deposit ₹1,00,000 as directed. Thus, the respondent maintained that ordering a DNA test was justified and did not violate any legal or ethical standard.
Observation and Judgment of the Case
The Bombay High Court (Nagpur Bench), presided over by Justice R.M. Joshi, observed that merely alleging adultery against the wife does not warrant subjecting a minor child to a DNA test, especially when the respondent-husband has never explicitly denied paternity or claimed non-access during the conception period.
The Court emphasized that Section 112 of the Indian Evidence Act creates a conclusive presumption of legitimacy for a child born during a valid marriage, which can only be rebutted by strong proof of non-access.
It held that scientific tests like DNA profiling cannot override this presumption unless essential and justified. In this case, since no specific plea of non-access or denial of paternity was ever made by the husband, the direction for DNA testing lacked legal basis.
The High Court said,
“There would be more responsibility on the Court than to just decide the disputed questions between parties. The court is undoubtedly required to consider pros and cons before calling upon a minor child to undergo a blood/DNA test.”
The Court also underscored the importance of considering the best interest of the child, who cannot be compelled to undergo such tests amid parental disputes. Concluding that the Family Court had erred in law and fact, the High Court quashed the impugned order and dismissed the application for DNA testing.
Case Title: SKP vs KSP
(Writ Petition 3499 of 2020)
READ JUDGMENT HERE
