DNA Test For Paternity Most Authentic For Wife To Establish That She Had Not Been Unfaithful, Adulterous Or Disloyal: Allahabad High Court

The Bench of Justice Vivek Agarwal further held,

"This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal."

Issue before the Court

The only issue before the Court was, as to whether a Court, in a divorce petition filed by Husband, under Section 13 of the Hindu Marriage Act, 1955 on the ground of adultery, can direct the wife, either to undergo a D.N.A. test or refuse to undergo a D.N.A. test?

Also, in case she elects to undergo a D.N.A. test, then would the findings of the D.N.A. test determine conclusively the veracity of accusation levelled by the petitioner-husband against her?

Further, if wife refuses to undergo a D.N.A. test, then whether a presumption can be drawn by the Court against the wife, that is to say, whether the report of D.N.A. test is just a piece of expert evidence or a conclusive or a substantive piece of evidence.

Background of the Case

A petition under Article 227 of the Constitution of India, was filed by the Wife (Neelam), challenging order dated 22.09.2018 passed by Additional Principal Judge, Family Court Hamirpur under Section 13 of the Hindu Marriage Act, 1955.

According to the husband-respondent, he was not living with his wife i.e. the petitioner since 15.01.2013 and there had been no resumption of cohabitation since then.

On 25.06.2014, husband had given customary divorce to the petitioner-wife and was paying maintenance to her since then. A male child was born to the petitioner-wife on 26.01.2016 in her paternal house.

On the other hand, the Petitioner-Wife filed her objections and objected to the application filed by the husband seeking D.N.A. Test on the ground that no legal provision is mentioned in the application.

She denied that there had been no cohabitation between the parties since 15.01.2013. She claimed that when she was pregnant, she was tortured by her husband and was driven out of the matrimonial home, therefore, she gave birth to a male child on 26.01.2016.

Plea of presumption under Section 112 of the Evidence Act too was raised by the present petitioner.

Court's Observations

The High Court noted in its order that the Family Court had relied on the judgment of the Supreme Court in the case of Dipanwita Roy Vs. Ronobroto Roy, 2015 (1) SCC D 39 (SC).

In this case, the husband had filed a divorce petition on the ground of adultery. The adulterer was named and then the husband had moved an application for D.N.A. Test of himself and the male child born to the wife.

The Family Court had dismissed the application. However, the High Court had reversed the orders of the family court.

Further, the Supreme Court upheld the order of the High Court despite the pleading of the wife that husband had access to her, whereas the husband had denied the same categorically.

Notably, in the Case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, 2014 (2) SCC 576, the Apex Court has observed that,

"The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary."

The Apex Court had further observed that,

"We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. 'Truth must triumph' is the hallmark of justice. (emphasis is ours). This Court has therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act."

Lastly, the High Court observed that when the impugned order is tested on the touchstone of the legal pronouncement of the Supreme Court, the same couldn't be faulted with.