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 ActCertain 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 PresumptionThe "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...

Disputed Paternity: When Can Courts Order DNA Test In Matrimonial Cases Involving Allegations Of Adultery? EXPLAINED

Sofi Ahsan

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