Refusal For DNA Test After Allegation Of Adultery Can’t Lead To Inference Of Adulterous Relationship As Conclusive Proof Absent: Patna High Court

The Patna High Court recently said that the refusal for a DNA test after an allegation of adultery cannot be used to draw an inference to such an extent that the person against whom the accusation has been made "is in adulterous relation with someone because conclusive prove of D.N.A. test is not present."

Justice Dr. Anshuman said that adverse inference ought to be drawn but "but this adverse inference shall be drawn only up to that extent that no benefit should be granted to opposite party No.1 but inference cannot be drawn up to that extent that opposite party No.1 is in adulterous relation with someone because conclusive prove of D.N.A. test is not present."

The court made the observations in a case where a husband had filed a petition challenging the order passed by the Principal Judge, Family Court, Gaya, which directed him to pay maintenance of Rs. 6000/- and 2000/- per month to his wife and their alleged son, respectively. The impugned order also directed that the maintenance allowances shall be payable to the son till he attains his age of majority.

It was the consistent stand of the petitioner that the alleged son was not his, and upon challenge made by the petitioner, the court had ordered for a DNA test, which his wife initially agreed to, but later refused.

The husband argued that the wife's refusal to undergo the DNA test should be taken as an adverse inference and that it proved that she was in an adulterous relationship with someone else. Section 125(4) of CrPC debars the wife from seeking any maintenance, it was argued, adding that neither the wife nor the alleged son are entitled for any maintenance.

The court said that it is an admitted fact that the couple are husband and wife and under Section 125 of CrPC, the wife is entitled for maintenance from her husband.

It further said that the case is of the year 2017 and today the maintenance amount of Rs 6000 is a "petty amount".

"Therefore, this Court is not interfering on this issue and directs the petitioner that he shall pay Rs.6,000/- per month to his wife i.e. opposite party No.1 and this Court only modified in the order that particularly when opposite party No.2 is not ready for D.N.A. test then adverse inference shall be drawn and on the basis of that adverse inference direction for granting maintenance of Rs.2,000/- to opposite party No.2 is hereby set- aside," said the court.

Case Title: BS vs. SK and Anr CRIMINAL REVISION No.777 of 2016

Appearance:For the Petitioner/s: Mr. Syed Alamdar Hussain, Adv. Mr. Shashi Bhushan Kumar, Adv.

For the Respondent/s: None

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