'Child Can't Be Used As Pawn To Prove Adultery': Telangana High Court Quashes Order Directing Minor's DNA Test In Divorce Case

The Telangana High Court has set aside a trial court order directing DNA test of a minor child to determine paternity in a matrimonial dispute, holding that a child cannot be used as "pawn" to establish allegations of adultery against the mother wherein the husband can prove the allegation without sacrificing the child's identity. A Single Judge Bench of Justice Renuka Yara observed that the question of directing DNA testing must be assessed “through the prism of the child” and not merely through the interests of the contesting spouses. Relying on the Supreme Court's decision in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, the Court quoted:“DNA tests of children born during the subsistence of valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised has to non-access in order to rebut the presumption under Section 112 of the Evidence Act a DNA test may not be directed… The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the respondent husband to prove by other evidence the adulterous conduct of the wife, but the child's right to identity should not be allowed to be sacrificed… To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child.”Section 112 of the Indian Evidence Act states that if a child is born during a valid marriage it is legally presumed to be the husband's child unless it is proven that the spouses had no access to each other during the period of conception. Based on this legal position, the Court allowed the civil revision petition and set aside the order dated 17.09.2024 passed by the Senior Civil Judge, which had directed DNA testing of the husband and the minor child. Background The revision petition was filed by the wife challenging an order passed by the trial court which had allowed an application seeking DNA testing of the husband and the minor child to determine paternity.The matrimonial dispute arose after the husband filed a petition under Section 13(1)(i-a) of the Hindu Marriage Act seeking dissolution of marriage. He alleged that the wife was involved in an extramarital relationship with another person and had even declared that the minor child was not his biological daughter but the daughter of the alleged paramour.On this basis, the husband moved the application seeking DNA testing to establish the paternity of the child and to substantiate his allegations of adultery.The wife opposed the application, contending that the husband had already obtained a DNA report privately and was attempting to use such allegations to remove her and the minor child from the matrimonial home. She also raised objections regarding the collection of DNA samples.The trial court allowed the application after referring to various Supreme Court judgments including Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, Sharda v. Dharmpal, Goutam Kundu v. State of West Bengal, Dipanwita Roy v. Ronobroto Roy, and Aparna Ajinkya Firodia v. Ajinkya Arun Firodia. It held that though DNA testing of a minor child is a sensitive issue, such testing may be necessary where allegations of adultery are raised in matrimonial proceedings.The court therefore directed the husband and the minor child to appear before the Director of the Forensic Science Laboratory for DNA testing and for submission of the report to the court.Before the High Court, the wife relied on Section 112 of the Indian Evidence Act, which provides that a child born during the continuance of a valid marriage is presumed to be legitimate unless it is shown that the parties had no access to each other during the relevant period.Accepting this contention, the High Court noted that the statutory presumption under Section 112 operates strongly in favour of legitimacy of a child born during marriage. The Court observed that “if there is no pleading about non access during subsistence of marriage, the said presumption under Section 112 of the Evidence Act comes into play about legitimacy of the child.” The Court further emphasised that the law must be applied with caution where a request for DNA testing would affect the identity, privacy and welfare of a minor child.Applying this principle, the Court held that the minor child was not a party to the divorce proceedings and that the husband could attempt to prove allegations of adultery through other evidence. In such circumstances, subjecting the child to DNA testing would be impermissible.Allowing the revision petition, the Court set aside the impugned order directing DNA testing. However, it clarified that the husband would remain free to lead other evidence to substantiate the allegations made in the divorce petition.Case Title: X v. YCase No.: Civil Revision Petition No. 3164 of...

'Child Can't Be Used As Pawn To Prove Adultery': Telangana High Court Quashes Order Directing Minor's DNA Test In Divorce Case

Ananya Tangri

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