Allahabad HC Denies Relief To Man Who Secretly Took Daughter's Blood Sample For Private DNA Test To Deny Paternity, Avoid Maintenance

Calling the said DNA report obtained by the applicant “nothing but trash”, which cannot be relied upon, a bench of Justice Rahul Chaturvedi dismissed the man's plea to order a fresh DNA test of the applicant and his daughters.

“…this gimmickry in the shape of DNA Report, was conducted at the behest of the appellant who on his own in a clandestine fashion, taken out the samples and obtained a report from DNA Lab India, Hyderabad that he is not a biological father of the opposite party no.3. This test report as mentioned is simply a trash and cannot be relied upon nor any order for conducting a de novo DNA report could be ordered in the absence of any pleading regarding non-access of applicant with his wife-opposite party no.2 during last four years of subsistence of marriage.”

Importantly, the Court also said that whether the DNA test should be permitted on the child is to be analysed through the child's prism and not through the prism of the parent. It added that a child cannot be used as a pawn to show that the mother of the child was living in adultery.

The Court also rejected his prayer to set aside the court's order directing him to pay maintenance to his wife and two daughters.

The Court added that unless the applicant can directly or circumstantially prove his wife's adultery, it will presume otherwise and that only in exceptional circumstances may the Court order a DNA test.

The Court also condemned the applicant's baseless and derogatory allegations against his wife's chastity as an attempt to avoid paying maintenance.

The case in brief

The marriage between the applicant (Dr. Ifraq Mohammad Ifraq Husain) and respondent no. 2 (Smt. Shazia Parveen) was conducted according to Muslim rites on November 12, 2013.

Their relationship lasted until 2017, after which his wife began living with her parents due to alleged mistreatment from her husband and in-laws, reportedly stemming from insufficient dowry.

In this case, the applicant (Dr Ifraq @ Mohammad Ifraq Husain) attempted to claim that his wife, with whom he co-habited between 2013-2017, had an extramarital affair and was leading an adulterous life.

To prove his claim and to deny paternity of the daughters, he secretly took a blood sample of one of his two daughters and sent it to a private DNA lab in Hyderabad and obtained a certificate stating he was not the biological father of the said daughter.

This all happened after the wife moved the Court in July 2019, seeking maintenance for herself and her daughters and while the said maintenance proceedings were pending before the Court;

Later, he moved the Court to direct his wife and two daughters to give their samples so that the girl's paternity could be established with the aid of the Court's order, and he could be exempted from paying maintenance to her daughter and wife.

When the said plea was rejected, he moved the High Court seeking an order for a fresh DNA test of the applicant and two daughters.

High Court's observations

At the outset, the single judge, taking note of all the facts of the case, stressed that if the applicant-husband has not raised a plea of non-access to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed.

The Court added that on the birth of child during marriage, the presumption of legitimacy is conclusive no matter how soon the birth occurs after the marriage. 

The Court also said there must be a strong prima facie case that the husband must establish non-access with his wife to dispel the presumption under section 112 of the Evidence Act.

“...the applicant, at no point of time, have ever pleaded in his pleadings that he has got no access to cohabitate with his wife, then in order to facilitate the applicant, if DNA test is being ordered, and God forbid if the result goes otherwise that would lead to disastrous results, not only putting a question mark upon the life of a mother and the child who has got no say in this incident. The inter se relationship between the husband and the children would seriously be jeopardized and would lead to a picture where nobody would be a gainer.”

In this regard, the Court also relied upon the Supreme Court's 2021 ruling in Ashok Kumar v. Raj Gupta and others LL 2021 SC 525, wherein it was observed that in circumstances where other evidence is available to prove or dispute the relationship (between husband and wife), the Court should ordinarily refrain from ordering blood tests like DNA tests against the will of the party who is to be subjected to such test.

Against this backdrop, the Court noted that the applicant had failed to establish or even plead in his pleadings that he had no access to his wife during the subsistence of marriage from November 2013 to the year 2017, when she left her matrimonial home.

“Mere making a baseless and bald allegation that his wife is an unchaste woman, leading adulterous life, would have no consequence and would be construed that this crude attempt on his part, is nothing more than to avoid payment of maintenance to the kids,” the Court said.

The Court also opined that if the DNA test is being carried out in a normal routine way, it would open the pandora's box for “unscrupulous” husbands to challenge the paternity of their offspring.

“In fact, DNA test should be at the last resort. Its the liability of the husband to establish the fact that he has got no access to his wife or for any physical reason he is permanently incapacitated to cohabitate with his wife,” the single Judge further remarked.

The Court stressed that it is always open for the husband to prove, by other evidence, the adulterous conduct of his wife, but the child's right to identity should not be allowed to be sacrificed.

“What comes out of the DNA test is the main product, is the paternity of the child which is subjected to a test. Incidently, the adulterous conduct of the wife also establishes as a by-product Though, the very same process. To say that the wife should allow the child to undergo the DNA test, to enable the husband to have a benefit of both product and the by-product or in alternative the wife should allow the husband to have a benefit of the byproduct by invoking Section 114 of the Evidence Act, if she denies not to subject child a DNA test, is really to leave the choice between the devil and the deep sea to the wife,” the Court remarked.

Consequently, the Court declined to grant any relief to the applicant- to quash the order (January 20, 2023) passed by IIIrd Additional Sessions Judge, Kasganj under section 125 CrPC or grant any fresh direction to hold a fresh DNA test of the applicant and respondent nos.3 and 4 for the reasons mentioned above.

In addition to this, the Court also dismissed the prayer seeking to set aside the maintenance order passed by Gram Nyayalaya, Patiali, Kasganj and the order passed by the IIIrd Additional Sessions Judge, Kasganj.

Case citation: 2024 LiveLaw (AB) 410