A Supreme Court bench comprising of Justice J.S. Khehar and Justice R.K. Agrawal accepted the DNA application of a husband, seeking to establish infidelity by his wife, giving a liberty to the wife to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test.
The Court said, "In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation leveled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof."
The Bench accepted the view taken in the case of Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, which had observed, "In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed."
The petitioner and the respondent got married in Calcutta in 2003. The present controversy emerged from a petition filed under Section 13 of the Hindu Marriage Act, 1955 by the husband, seeking dissolution of the marriage solemnized between the petitioner-wife and the respondent-husband.
One of the grounds for seeking divorce was the alleged adulterous life style of the wife. The petitioner stated that, "The respondent has gone astray. She is leading a fast life and has lived in extra marital relationship with the said Mr. Deven Shah, a well to do person who too is a carrier gentlemen and has given birth to a child as a result of her cohabitation with Shri Deven Shah. It is reported that the respondent has give birth to a baby very recently. The respondent is presently living at the address as mentioned in the cause title of the plaint."
The Court noticed that the wife expressly asserted the factum of cohabitation during the subsistence of their marriage, and also denied the accusations leveled by the husband of her extra marital relationship, as absolutely false, concocted, untrue, frivolous and vexatious.
In order to substantiate his claim, in respect of the infidelity of the wife, and to establish that the son born to her was not his, the husband moved an application seeking a DNA test of himself and the male child born to the wife.
The Family Court had however dismissed the prayer for conducting the DNA test. Calcutta High Court however allowed the petition filed by the husband.
Upholding the decision of Calcutta HC, the Supreme Court observed, "In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified."
Giving a liberty to the wife to accept or reject the Court's order, the Bench observed, "DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so."
This course was adopted to preserve the right of individual privacy to the extent possible.
Read the judgment here.