Mother Can't Consent To Son's DNA Test Once He Attains Majority During Pendency Of Matrimonial Case: Jharkhand High Court
The Jharkhand High Court has held that where a child attains majority during the pendency of matrimonial proceedings, the mother ceases to have the authority to consent to a DNA test on the child's behalf. The Court observed that an adult child, who is not a party to the proceedings, cannot be compelled to undergo a DNA test and no adverse inference can be drawn against the mother if the...
The Jharkhand High Court has held that where a child attains majority during the pendency of matrimonial proceedings, the mother ceases to have the authority to consent to a DNA test on the child's behalf. The Court observed that an adult child, who is not a party to the proceedings, cannot be compelled to undergo a DNA test and no adverse inference can be drawn against the mother if the child refuses to undergo such examination.
A Single Judge Bench of Justice Anubha Rawat Choudhary was hearing a writ petition challenging an order passed by the Principal Judge, Giridih, rejecting the husband's application seeking DNA testing of a child whom he alleged was born out of his wife's adulterous relationship.
The petitioner-husband submitted that after his marriage in July 2000, he left for Surat in January 2001 for employment and remained there till April 2002. He claimed that upon returning on May 3, 2002, he found his wife in an advanced stage of pregnancy. The child was born on June 1, 2002. According to the petitioner, he had never cohabited with the respondent during the relevant period and, therefore, the child could not have been fathered by him. He further alleged that the respondent continued to live in adultery even after the birth of the child and had subsequently instituted criminal proceedings against him alleging dowry demand.
It was submitted that after examination of four witnesses in the matrimonial suit, the petitioner moved an application seeking DNA testing of the child. The petitioner contended that the trial court had erroneously rejected the application by relying upon Section 112 of the Indian Evidence Act.
Opposing the plea, counsel for the respondent submitted that the divorce petition itself did not contain any foundational pleading that the husband had no access to the wife during the relevant period. It was further argued that the child, who is now about 24 years old, had lived his entire life with the petitioner as his acknowledged father and directing a DNA test at this stage would seriously prejudice him.
The High Court noted that the divorce suit had been filed nearly six years after the child's birth solely on the ground of adultery. The Court further observed that the plaint contained no specific averment that the husband had no access to the wife, or that the wife had no access to the husband, during the period between January 2001 and April 2002.
During the hearing, the Court also took note of the fact that although the child was a minor when the divorce proceedings and the application seeking DNA testing were instituted, he had attained majority during the pendency of the case. The Bench observed that where the child is a minor, consent for DNA testing is ordinarily furnished by the natural guardian, subject to the Court safeguarding the child's privacy and welfare. However, the legal position changes once the child becomes an adult. The Court held:
“At the time when the divorce case was filed, the child was a minor aged 6 years and when the petition seeking DNA test was filed, the child was aged about 8 years... However, now the child has attained the age of about 24 years and the child who has now become an adult cannot be forced to be subjected to DNA test. No adverse inference against the mother (defendant/respondent) can be drawn if the child refuses for DNA test.”
The Bench further observed that upon the child attaining majority, the mother lost the authority to represent him in matters relating to consent for DNA testing. Since the child had not been impleaded as a party even after attaining majority, the Court held that any order directing DNA examination would not be binding upon him. The Court observed:
“The mother having lost the right to represent the child as the guardian of the child, at this stage the mother has neither any right to give consent to DNA test of the child nor has any means to enforce such an order of DNA test, if passed by this court.”
The High Court further held that, even otherwise, the petitioner had failed to satisfy the settled legal requirements for directing a DNA test. Referring to the law governing Section 112 of the Indian Evidence Act, the Court reiterated that a DNA test can be ordered to establish allegations of infidelity or adultery only when the husband makes out a strong prima facie case and establishes non-access so as to rebut the statutory presumption regarding legitimacy. The Bench observed that no such foundational pleadings had been made in the divorce petition.
Holding that the trial court had rightly rejected the application seeking DNA testing, the High Court dismissed the writ petition.
Case Title: Lakhan Kumar Mandal v. Foolmati Devi.
Case Number: W.P. (C) No. 576 of 2012
Appearance: Mr. A. K. Das, Mr. Siddharth Jain, and Mr. Vineet Sinha for the Petitioner. Mr. Amit Sinha for the Respondent.