‘Can’t Use Child As Weapon To Get Divorce On Ground Of Adultery’: Rajasthan HC Refuses To Allow Man To Bring Alleged Son’s DNA Test Results On Record

While rejecting a man’s petition to bring on record his alleged son’s paternity test results in the divorce case pending before the Family Court, the Rajasthan High Court has observed that the child cannot be used as a weapon to get divorce on grounds of adultery.

The court said DNA Test invades upon the rights of a child, which may range from affecting his property rights, right to lead a dignified life, right to privacy and “right to have the confidence and happiness of being showered with love and affection by both parents.”

“The DNA Paternity Test requires to be conducted only in exceptional cases, and therefore, the child cannot be used as a weapon to get divorce on ground of adultery, on the strength of outcome of a DNA Paternity Test,” observed Justice Dr. Pushpendra Singh Bhati.

The court said it is necessary for the man to first prove that he had no access with his wife. “Only thereafter, the benefits of exceptional exclusion from the purview of Section 112 of the Indian Evidence Act, 1872 can be extended to the aggrieved party,” the court said.

Justice Bhati said the court has to keep into paramount consideration the mental and physical health of a child and the aspects adversely affecting it.

“It is high time that the society and law realize the importance of the child and childhood vis-a-vis the matrimonial disputes, as losing and winning in a marriage is having a dwarfed impact, when it is compared with losing of childhood, in terms of victimizing the child or sacrificing his constitutional right of dignity, at the altar of matrimonial conflicts,” the court observed.

It further said the case has to be seen through the prism of the child and not through the prism of the “cantankerously fighting parents.”

Observing that child cannot be used as a pawn in a divorce litigation, where either of the parents want to get rid of the spouse, while sacrificing the crucial rights of the child to a dignified parenthood, the court said the same will not only cause an unfathomable misery upon the rights of the child, but also create a permanent dent on his existence or psyche.

“The pain of winning or losing a battle of divorce amongst the contesting spouses is much trivial when compared with the rights of the child to have dignity and parenthood,” it added.

The court was hearing the plea against the order of an Udaipur court which had rejected the man’s plea to amend the divorce pleading, on the basis of DNA Paternity Test of the son, while claiming the same to be a subsequent development in the case before the Family Court. It was submitted that the DNA Paternity Test Report revealed that he is not the father of the child.

The court noted that the husband had filed an application under Section 13 of the Hindu Marriage Act, 1955, in which there was no allegation of adultery. The divorce application was filed by the husband in 2019, without taking any ground of adultery, but merely by mentioning the wife used to tell him that he is not the father of the child, the court added.

It noted that the marriage between the parties was solemnized in 2010 and the boy was born in 2018. The wife left the husband’s house in 2019.

The DNA Paternity Test of the child was conducted in 2019 without taking the child or his mother (wife) into confidence, it noted.

“The record of the case clearly reveals that the petitioner- husband and the respondent-wife were living together at the time of birth of the child (son), and thus, the husband was having access for cohabitation; thus, the question regarding presumption under Section 112 of the Indian Evidence does not even arise in the present case,” the court observed.

It referred to the Apex Court’s decision in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia wherein it was observed that “the Family Courts have power to order for DNA Test, but it should not be directed in a routine manner, without any justifiable reason for the same; the same should be done after duly complying with the principles of natural justice. The husband thus, cannot take undue advantage of the DNA Test so as to shirk away from his obligation.”

It further observed that any matrimonial dispute between the husband and wife pertaining to the child born from the wedlock, cannot be used for their own benefit by way of DNA Paternity Test, among other things.

“This Court is quite conscious of the fact that any frivolous claim of the husband or wife would have much adverse affect on the mental health of the child; though the husband has a right to prove adultery on the strength of cogent evidence against his wife,” said Justice Bhati.

While refusing to grant any relief to the man, the court said:

“While choosing between the sanctity of marriage and sanctity of the childhood, the Court has no option but to tilt towards the sanctity of the life, i.e. tilting towards the sanctity of the childhood. The parties may or may not lose the marriage, but the spirit of justice cannot afford to lose the child/childhood, as no Court can shut its eyes, so as only to achieve the goal of justice in matrimonial redressals, while losing the battle of parenthood, being detrimental to the childhood.”

Case Title: X versus Y

For Petitioner: Dr. Sachin Acharya, Senior Advocate assisted by Jitendra Choudhary

Click Here to Read/Download Order

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