Disputed Paternity: When Can Courts Order DNA Test In Matrimonial Cases Involving Allegations Of Adultery? EXPLAINED
Courts in India are witness to bitter matrimonial disputes and the children often become victims in the battles of their own parents. The fact that a child was born during the subsistence of a valid marriage is legally considered a conclusive proof of the “legitimacy” of the child, unless proven otherwise. However, the courts often have to deal with applications questioning the paternity of children, as the husbands seek to prove the alleged adultery or infidelity of their wives on the basis of DNA tests. The consequences of such acts on the child are enormous but such applications are routinely filed and even orders are passed, subjecting the children to DNA tests.
The Supreme Court in Sharda vs. Dharmpal has held that a matrimonial court has the power to order a person to undergo a medical test. Such order would not be in violation of the right to personal liberty under Article 21 of the Constitution, the court has ruled.
On Monday, the apex court passed an exhaustive judgement on the subject and in a way expressed concern at the routine attempts to dislodge the legal presumption favouring the “legitimacy” of the child. It reiterated that such orders ought not be passed on mere asking of a husband.
This explainer details the law laid down by the bench of Justice V. Ramasubramanian and Justice B.V Nagarathna. The judgment has been penned by Justice Nagarathna. Besides concurring with Justice Nagarathna, Justice Ramasubramanian has also written a separate opinion on the subject.
Indian Evidence Act
Certain provisions of the enactment are relevant for the legal question regarding paternity of a child.
Section 112 of the Act says that fact that a child was born during the continuance of a valid marriage, or within 280 days after its dissolution - the mother remaining unmarried, shall be conclusive proof that he is the "legitimate son" of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
Section 114 states that that “court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” Example as given under Section 114 (h) — when a person refuses to answer a question, which though the person is not compelled to answer by law, the court can presume that the answer, if given, would be unfavourable to the person.
Challenge To Conclusive Presumption
The "conclusive proof" of the “legitimacy” of the child can be questioned by establishing that the husband and wife did not or could not have any access to each other at any time when the child was conceived. The court said the principle underlying Section 112 is to prevent an unwarranted enquiry as to the parents of the child and therefore, once a marriage is held to be valid, there is a strong presumption for the “legitimacy” of the child.
The court explained that “access” or “non-access” does not mean actual cohabitation but means the “existence” or “non-existence” of opportunities for sexual relationship.
The court stressed that strong and cogent evidence is required to prove that “access” between the husband and wife was impossible “on account of serious illness or impotency or that there was no chance of sexual relationship” during the period when the child must have been begotten.
“‘Access’ or ‘non-access’ must be in the context of sexual intercourse that is, in the sexual sense and therefore, in that narrow sense. Access may for instance, be impossible not only when the husband is away during the period when the child could have been begotten or owing to impotency or incompetency due to various reasons or the passage of time since the death of the husband. Thus, even though the husband may be cohabiting, there may be non-access between the husband and the wife. One of the instances of non-access despite co-habitation is the impotency of the husband. If the husband has had access, adultery on the wife's part will not justify a finding of illegitimacy.”
The court said “non-access” has to be proven as a fact and can be established by “direct and circumstantial evidence” which is of an “unambiguous character”. It also said that there could be “non-access” between the husband and wife despite co-habition.
“Conversely, even in the absence of actual co-habitation, there could be access,” it added.
The court said the fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a child. The court said “shreds of evidence” indicating that the husband did not have intercourse with the wife at the period of conception, can “only point to the illegitimacy of a child” but it would not uproot the presumption under Section 112.
DNA Tests Sufficient Proof?
Observing that Section 112 was enacted at a time when ordering of scientific test like DNA test as well as Ribonucleic acid (RNA) tests were not in picture, the court said the result of a genuine DNA test cannot escape from the conclusiveness of the presumption under Section 112 of the Evidence Act.
It explained that if a husband and wife were living together during the time of conception but the DNA test reveals that the child was not born to the husband, the conclusiveness in law would remain irrebuttable.
“What would be proved, is adultery on the part of the wife, however, the legitimacy of the child would still be conclusive in law. In other words, the conclusive presumption of paternity of a child born during the subsistence of a valid marriage is that the child is that of the husband and it cannot be rebutted by a mere DNA test report. What is necessary to rebut is the proof of non-access at the time when the child could have been begotten, that is, at the time of its conception.”
In Dipanwita Roy vs. Ronobroto Roy, the Supreme Court has held that DNA testing is the "most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity."
The court has also held that it “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.”
In the same ruling, the apex court also said that an adverse presumption can be drawn against the wife in case she refuses to undergo the DNA test.
Can Court Generally Draw Adverse Inference When Wife Refuses To Undergo DNA Test?
In the latest judgment, the court said refusal to answer a question is generally a legitimate ground for unfavourable inference against the person who may not answer the question. The courts have a discretion and can exercise it having regard to the facts of each case, it said.
The court made an important clarification with respect to Dipanwita Roy. It said presumptions are established on the basis of facts, and the court enjoys the discretionary power, either to presume a fact or not.
The court relied on the meaning of ‘Adverse Inference’ as explained in Black's Law Dictionary, 9th Edition - “A detrimental conclusion drawn by the fact-finder from a party’s failure to produce evidence that is within the party’s control. Some courts allow the inference only if the party’s failure is attributable to bad faith.”
“The aforesaid meaning would also suggest that inferences, whether adverse or otherwise, are to be drawn by the Court, on consideration of facts and circumstances of each individual cases. Hence, the judgment of this Court in Dipanwita Roy is to be read in the aforesaid context,” the court said.
Justice Ramasubramanian in a separate opinion said that under Section 114, the existence of any fact which the court may presume to have likely to have happened, turn on three things – (i) common course of natural events, (ii) common course of human conduct, and (iii) common course of public and private business.
“Since natural events, human conduct, etc. are not always consistent, the presumption regarding the existence of any fact with regard to these things, are placed only under the category of facts which 'may be presumed',” said Justice Ramasubramanian.
Justice Ramasubramanian also said such presumption is optional and not mandatory, while noting that there are nine illustrations under Section 114. The judge also said that Section 114 has nothing to do with, nor is connected with conclusive proof of legitimacy dealt with by Section 112.
“Both Section 112 and Section 114 fall under different compartments. The word “presumption” itself is not used in Section 112. The expression used in Section 112 is “conclusive proof”. Therefore, by virtue of Section 4 [which defines 'conclusive proof'], no evidence shall be allowed to be given for the purpose of disproving it,” said Justice Ramasubramanian.
Justice Ramasubramanian also said that it is only after he convinces the court to order a DNA test, the husband can seek refuge under Section 114(h) when the question of the willingness of the wife to abide by the order arises.
“In the case on hand, the appellant has a dual role to play, namely, that of the respondent’s wife and that of Master XXX’s mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her. By refusing to subject the child to DNA test, she is actually protecting the best interests of the child.”
Justice Ramasubramanian said Section 114(h) has no application to a case where a mother refuses to make the child undergo a DNA test. "By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant-wife may be rewarded, but not punished with an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant to a catch-22 situation," he said.
When Can DNA Test Be Ordered To Prove Adultery?
The court said a Family Court no doubt has the power to direct a person to undergo a medical test including a DNA test but “an order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case.”
The court said the law does not contemplate use of DNA tests as exploratory or investigatory experiments for determining paternity.
Relying on various precedents, the court said the proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions.
“DNA tests of children born during the subsistence of a 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 as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed,” it said.
The court said merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct a DNA test or such other test to resolve the controversy.
“The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test,” said the court.
The court said the husband would first need to dislodge the presumption under Section 112 of the Evidence Act and thereafter seek a direction to conduct the DNA test of the child.
“It is trite that the burden is on a litigating party to prove his case by adducing evidence in support of his plea. The Court is not to compel one party to the dispute to assist the other contesting party, vide Ashok Kumar. Therefore, DNA tests are not to be directed on a routine basis, merely to enable a party to prove his case of adultery,” said the court.
The bench also stressed that while directing DNA testing as a means to prove adultery, the court is to remain mindful of the consequences on the child including inheritance-related disputes and social stigma.
"Children have the right not to have their legitimacy questioned frivolously before a Court of Law. This is an essential attribute of the right to privacy. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses," said the court.