Delhi High Court Upholds Family Court Order Rejecting Husband's Plea For Paternity Test Of Wife, Child Over Allegations Of Adultery

The Delhi High Court has upheld a family court order which rejected a husband's plea to direct the wife and the child to give their blood samples for conducting a paternity test in order to establish her “adulterous conduct” and the minor being the “pawn.”

A division bench of Justice Rajiv Shakdher and Justice Amit Bansal dismissed the husband's appeal and said that whether the wife was involved in an adulterous relationship, as alleged, is an aspect that will have to go to trial.

The court said that the couple, yet to be divorced, lived together between 2008 and 2019 and thus, the presumption in favour of legitimacy under Section 112 of the Evidence Act springs forth qua the minor child.

“In our opinion, the appellant/husband cannot, by a sidewind, impact the interest of the child who is not a party to the proceedings. The Family Court would have to take into account the evidence that the parties may lead to arrive at a conclusion, as suggested by the appellant/husband, that the respondent/wife had sexual intercourse voluntarily with a person other than the appellant/husband,” the court said.

It added: “Whether or not the respondent/wife had had an adulterous relationship could be gone into without subjecting the child to a paternity test. This view finds resonance in the following observations made by the Supreme Court in the case of Aparna Ajinkya Firodia v. Ajinkya Arun Firodia 2023.”

The minor was born in 2014. A divorce petition was filed by the husband in 2020 on the grounds of cruelty by the wife. An application was filed by him later to amend the petition to establish that he was suffering from azoospermia, and hence, the child purportedly born from wedlock did not bear the imprint of his paternity.

While his application was allowed, the family court rejected his subsequent application seeking that the wife and the child should be asked to give their blood samples so that the minor's paternity could be ascertained.

Dismissing the husband's appeal, the court said that it is in the realm of possibility, despite his assertion to the contrary, that the child bears his paternity.

“That said, the appellant's/husband's endeavour to establish that the respondent/wife had sexual intercourse voluntarily with a person other than the appellant/husband – is an aspect which may become the subject- matter of trial before the Family Court,” the court said.

Title: X v. Y

Citation: 2024 LiveLaw (Del) 119