CASE COMMENTARY Case Name – Aparna Ajinkya Firodia v. Ajinkya Arun Firodia 

Citation: 2023 LiveLaw (SC) 122 

Bench: V. Ramasubramanian, B.V. Nagarathna

FACTS: 

“This case is based on the controversy that emerged out of an application (Exhibit 84/B) filed by the respondent’s husband on 9^th November 2020 before the Principal Judge Family Court, Pune, praying for a direction to subject Master “X” the second child born to the appellant wife during the subsistence of her marriage with the respondent to deoxyribonucleic acid test (“DNA test” for short) to ascertain his paternity. The above said the respondent’s husband applied for a divorce petition. Filed under section 13 (1) (i) and (ia) of the Hindu Marriage Act. 1955 being petition No. P.A. 639 of 2017. 

More lucidity towards the facts of the case the appellant and the respondent got married as per Hindu rites and rituals at Pune, on 23rd November, 2005. Their first child, Master “Y,” was born on 21st December 2009. During the subsistence of their marriage, a second son, namely, Master “X”, was born on 17th July 2013. On 1^st June 2017, the respondent-husband filed a divorce petition and he discovered an adulterous relationship with Kshitij Bafna on 14^th September 2016. 

On 9th November 2020, the respondent-husband applied, before the Family Court, Pune seeking a direction to subject Arjun, the second child born to the appellant-wife, during the subsistence of her marriage with the respondent to DNA testing, to ascertain the child’s paternity, As he doubted that the second child Arjun was born out of an adulterous relationship of the appellant. On 12 August 2021 family court allowed for the DNA test for their second child. The family court ordered that the DNA test has to be conducted at the government’s central forensic laboratory on 12^th October 2021. The family court laid down that if the appellant failed to comply with their directions, then the family court had the discretion to draw the presumption given under Illustration (h) of section 114. 

The appellant moved a civil writ petition before the Bombay High Court against the direction of the DNA test of the family court. 

The High Court vide its judgment dated 22^nd November 2021 upheld the order of the family court for conducting a DNA test of the child. Further based on the aforesaid judgement the appellant moved a special leave appeal before the Supreme Court under Article 136 of the Constitution challenging the judgment of the Bombay High Court. The Supreme Court granted the leave and decided to hear the case.”

ISSUES RAISED

1. Whether the family court. Pune and the high court of judicature at Bombay, have rightly appreciated section 112 of the Evidence Act in directing that a DNA test of Master “X” be conducted?
2. Whether, on non-compliance on the part of the appellant of the direction to subject Master “X” to a DNA test, the allegation of adultery as against her could be determined by drawing an adverse inference as contemplated under illustration (h) of section 114?
3. What order? 

CONTENTION

Contentions of Appellants: 

• “Appellants contended that the High Court wrongly ordered a DNA test for the younger son without “eminent need” as laid down in Goutam Kundu vs. State of West Bengalwherein it was observed that the Indian law leans towards legitimacy and that a direction for DNA tests should be passed only after balancing the interests of the parties, including the rights of the child, and if such a test is eminently needed. Therefore the direction to conduct the same was erroneous.”
• Learned Senior Counsel for the appellant further contended that the High Court was wrong to rely on the respondent that he would not disown his son. A DNA test could harm a child’s privacy and social standing. The respondent wants the test for his benefit not for the child, and the law prioritizes the child’s legitimacy and privacy. 
• The learned Counsel argued that the respondent failed to prove non-access which is necessary to challenge the presumption of legitimacy under section 112 of the Evidence Act. Without strong evidence of non–access, the court should not have ordered a DNA test. Mater “X” was born in July 2013 during the marriage and the respondent does not deny access. A DNA test cannot be ordered based on vague evidence. The authenticity of the 24^th November 2016 DNA report must be proven in a trial before being relied upon, to prevent harmful effects on the child. 
• The appellant argued that the respondent’s claim of discovering adulterous messages in September 2016 lacked evidence and should not be relied upon. DNA tests, despite being accurate, should not routinely challenge the presumption of legitimacy under section 112 of the Evidence Act. Legitimacy and allegations of adultery are closely linked, so the court must preserve the presumption of legitimacy. The appellant requested that the High Court and family court orders for a DNA test be set aside. 

Contentions of Respondent:

• Learned senior counsel Sr. Kapil Sibal appearing on behalf of the respondent-husband submitted that the impugned judgment of the High Court and the order of the Family Court dated 12th August 2021 have been passed on an unimpeachable appreciation of the facts of the case, as well as the relevant law, and therefore, the same do not call for interference by this Court. 
• “The appellants argue that section 112 of the Evidence Act does not prevent courts from ordering DNA tests in deserving cases. They have cited the Dipanwita Roy v. Ronobroto Roy where the court outlined how to conduct DNA tests while preserving the presumption of legitimacy. The appellant suggests a similar approach should be taken in this case.”
• The appellant’s reluctance to take the DNA test supports the adultery allegations. The family court and high court correctly ordered the DNA test based on prima facie evidence and the privately conducted DNA test report indicates the respondent is nit the biological father. The appeal should be dismissed, affirming the family Courts and High Court. 

RATIONALE 

• “Justice Nagarathna summarized the principles of a DNA test of a minor child as DNA tests of minor children shall not be conducted routinely in case of matrimonial disputes unless there is no other way of proving infidelity. A DNA test of children who were born during the existence of marriage can only be ordered when there is strong and reliable prima facie to rebut the presumption contemplated under section 112 of the Evidence Act, DNA tests should only be ordered in unusual cases where it is needed to resolve the controversy relating to the paternity of the child. While ordering DNA tests as a means to prove adultery, the court shall take into consideration the repercussions it will have on such a child who was born out of an adulterous relationship including repercussions as to inheritance social sigma, etc. 
• The right of children not to have their legitimacy questioned frivolously in courts of law The Court observes that one’s genetic information is personal and intimate and forms part of one’s right to privacy, which is protected by law and extends even to children. The court must acknowledge that children should not be viewed as material objects and should not be subjected to DNA and forensic tests in divorce proceedings where they are not party to such proceedings. The court emphasized that children should not become a focal point of contention between spouses. 
• In the best interest of the child The Court carefully examines the negative impact of DNA tests on a child’s psychology, when it reveals illegitimacy. Revelation as to illegitimacy often results in a child’s quest to search for his real father and failure to do so causes trauma and frustration. It often turns up in bittering the relationship between the child and parents and the child develops mistrust towards his parents. The precious childhood of a child may also get lost in his search for paternity. Further, this also attracts lots of social stigma towards both the child and the mother.
• Justice V. Ramasubramanian observed the presumption under section 114 illustration (h) can only be drawn by those who refuse to answer the question. Here if the appellant in the capacity of wife raises an objection as to the DNA test of the child for her benefit, then the presumption under Section 114, illustration (h) can be raised against her. However, if the appellant raises objections as to the DNA test of the child in the capacity of a mother for the benefit of her child, then no presumption under the said provision can be drawn against her.
• The respondent’s contention is misplaced. An adverse inference can be drawn against a person who refuses to answer a question.  However, if the appellant as the mother refuses a DNA test to protect the child’s welfare no adverse inference of adultery can be drawn against her, by protecting the child’s best interest the appellants should not be punished. Section 114 (h) doesn’t apply when a mother refuses a DNA test for her child. The primary purpose of the DNA test is to establish paternity, not directly prove adultery, courts should remember that section 114 uses “may” not “shall” implying discretion. Thus the respondent’s argument is rejected. Hence, they reject the contention of the respondent that what is sought to be invoked is only section 114(h) and not section 112. 
• Also court held that the focus should be on the child and not the parents the child’s identity must be protected and not used as evidence of adultery. While the respondent has a right to a fair trial, it should not come at the expense of the child’s wellbeing. The child’s rights take precedence over the need for a DNA test in this context. 
• Therefore the appeal was allowed however this shall not preclude the respondent-husband from leading any other evidence to establish the allegations made by him against the appellant in the divorce petition.”

DEFECTS OF LAW 

• Misrepresentation of section 114 (h) of the Indian Evidence Act – the judgment suggests that the application of section 114 (h) to compel a DNA test for establishing paternity in the context of presumptions of legitimacy under section 113 may be incorrect. Section 112 provides conclusive proof of legitimacy and can only be rebutted by proving no access. Section 114 (h) which allows for presumption based on evidence being withheld, does not override 112 conclusive natures. 
• Misinterpretation of evidentiary presumption – the judgment points out that the High Courts’ interpretation of section 114(h) to draw an adverse inference from the refusal of a DNA test does not align with the conclusive nature of section 112. 
• Best interest of child – the order for a DNA test did not adequately consider the potential psychological and social impact on the child, which is an important aspect in family law matters. 

INFERENCE 

• The inference drawn from this case was, should parentage be given more weightage than biological parentage? When marital issues or adultery allegations arise, the legitimacy presumption under section 112 of the Evidence Act can be challenged. The court in a landmark case recognized DNA tests as valid evidence but urged caution due to potential impacts. A DNA test should be used only if crucial for the case as the court prioritizes child welfare and social parenting rights over proving adultery 
• Adverse inference from refusal for DNA test – a wife’s refusal for a DNA test can lead to adverse inference under section 114 of the Evidence Act. The court may assume facts. DNA tests are essential for determining paternity and balancing the child’s right to privacy with the right to know the truth. The court prioritizes the child’s welfare in these decisions. 
• Interplay of sections 114(h) and 112 of the evidence Act The respondent’s contention is misplaced. An adverse inference can be drawn against a person who refuses to answer a question.  However, if the appellant as the mother refuses a DNA test to protect the child’s welfare no adverse inference of adultery can be drawn against her, by protecting the child’s best interest the appellants should not be punished. Section 114 (h) doesn’t apply when a mother refuses a DNA test for her child. The primary purpose of the DNA test is to establish paternity, not directly prove adultery, courts should remember that section 114 uses “may” not “shall” implying discretion. Thus the respondent’s argument is rejected. Hence, they reject the contention of the respondent that what is sought to be invoked is only section 114(h) and not section 112. 

Name – Subia Tazeen Khan 

College Name – School of Law HILSR, Jamia Hamdard New Delhi