The SC said courts are required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding
The Supreme Court has recently observed that children have the right not to have their legitimacy questioned frivolously before a Court of Law as this is an essential attribute of the right to privacy.
A division bench has thus observed that a DNA test may be ordered only in exceptional and deserving cases, where such a test becomes indispensable to resolve a controversy.
“…a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions,” a division bench has further held.
It is imperative that children do not become the focal point of the battle between spouses, a bench of Justices Ramasubramanian and Nagarathna has observed.
Thus, the following principles have been culled out under which a DNA test of a minor child may be directed to be conducted:
i. That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions.
ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed.
iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding.
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iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test.
v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc.
These observations were made by the Supreme Court while hearing an application filed by a woman in a divorce petition challenging orders of a family court and the Bombay High Court that had allowed a DNA test on their minor child at the behest of the husband.
The husband sought the DNA test to ascertain paternity of the second child in order to prove his claim of adultery on the part of the wife.
The Supreme Court held that since the dispute was between the two parties, the rights and best interests of the child could not be sacrificed to enable one of the parties to have the benefit of a fair trial.
“The lis in these cases is between the parties to a marriage. The lis is not between one of the parties to the marriage and the child whose paternity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child,” the court said while setting aside the order directing the DNA testing.
