2023 (2) TMI 1163 - SC - Indian Laws

As per NAGARATHNA J. Ascertainment of paternity of the child - DNA profiling - allegation of adultery - presumption of legitimacy under Section 112 of the Evidence Act - non-compliance on the part of the appellant of the direction to subject Master X to DNA test, allegations of adultery as against her could be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114. HELD THAT - The presumption under Section 112 can be drawn only if the child is born during the continuance of a valid marriage and not otherwise. Access or non-access must be in the context of sexual intercourse that is, in the sexual sense and therefore, in that narrow sense. Access may for instance, be impossible not only when the husband is away during the period when the child could have been begotten or owing to impotency or incompetency due to various reasons or the passage of time since the death of the husband. Thus, even though the husband may be cohabiting, there may be non-access between the husband and the wife. One of the instances of non-access despite co-habitation is the impotency of the husband. If the husband has had access, adultery on the wife's part will not justify a finding of illegitimacy. Section 112 was enacted at a time when modern scientific tests such as DNA tests, as well as Ribonucleic acid tests ( RNA , for short), were not in contemplation of the legislature. However, even the result of a genuine DNA test cannot escape from the conclusiveness of the presumption under Section 112 of the Evidence Act. If a husband and wife were living together during the time of conception but the DNA test reveals that the child was not born to the husband, the conclusiveness in law would remain irrebuttable - the conclusive presumption of paternity of a child born during the subsistence of a valid marriage is that the child is that of the husband and it cannot be rebutted by a mere DNA test report. What is necessary to rebut is the proof of non-access at the time when the child could have been begotten, that is, at the time of its conception vide SMT. KAMTI DEVI VERSUS POSHI RAM 2001 (5) TMI 955 - SUPREME COURT . Whether an adverse presumption can be drawn in the nature of Illustration (h) to Section 114, as to the wife s adulterous conduct when she refuses to comply with a direction for the child to undergo a DNA test? - HELD THAT - Section 114 states that the Court may presume the existence of any fact that it thinks likely to have happened, having regard to the common course of natural events, human conduct and public and private business, in relation to the facts of a particular case. Broadly speaking, there are two classes of presumptions, viz presumption of fact and presumption of law. The latter is again categorised as rebuttable presumptions of law and irrebuttable or conclusive presumptions of law - The respondent sought to establish by way of a DNA test that the son conceived during the said period was born outside wedlock and as a result of the appellant-wife s adulterous relationship with another person and consequently demonstrated infidelity on the part of the appellant-wife. This Court took note of the plea of the respondent-husband as to nonaccess at the relevant time, and accordingly opined that it would be a fit case for directing that a DNA test be conducted. Further, in the facts and circumstances of the said case, this Court accepted that a DNA test would be the only way in which the respondent-husband could establish his plea of infidelity on the part of the appellant-wife. Use of DNA profiling technology as a means to prove adultery - HELD THAT - A Family Court, no doubt, has the power to direct a person to undergo medical tests, including a DNA test and such an order would not be in violation of the right to personal liberty under Article 21 of the Constitution, vide Sharda. However, the Court should exercise such power only when it is expedient in the interest of justice to do so, and when the fact situation in a given case warrants such an exercise. Thus, an order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case - This Court has, while considering questions connected with Section 112 of the Evidence Act, consistently expressed the stand against DNA tests being ordered on a mere asking. Further, the law does not contemplate use of DNA tests as exploratory or investigatory experiments for determining paternity. In Nandlal Wasudeo Badwaik 2014 (1) TMI 1793 - SUPREME COURT , the facts of the case were that due to non-opposition of the counsel for the wife, this Court directed that the serological test be conducted. The report was brought on record, which stated that the appellant-husband was not the biological father of the minor child. At the request of the respondent-wife, a re-test was ordered, which also revealed the same result. The plea with regard to the applicability of section 112 of the Evidence Act was taken only after the DNA test was conducted on the direction of this Court and the report was brought on record. This Court held that when a report of a DNA test conducted on the direction of a Court, was available on record and was in conflict with the presumption of conclusive proof of the legitimacy of the child, the DNA test report cannot be ignored. Hence, this Court relied on the DNA test report and held that the appellant-husband would not be liable to pay maintenance - in the present case, no DNA test is available till date, which was conducted on the direction of a competent Court. Therefore, the respondent-husband would first need to dislodge the presumption under Section 112 of the Evidence Act and thereafter seek a direction to conduct a DNA test of Master X . The Rights to Privacy, Autonomy and Identity of Children under The Convention on Rights of Child - HELD THAT - The concept of privacy for a child may not be equivalent to that of an adult. However, the evolving capacity of children has been recognised and the Convention acknowledges the control that individuals, including children, have over their own personal boundaries and the means by which they define who they are in relation to other people. Children are not to be deprived of this entitlement to influence and understand their sense of self simply by virtue of being children. Further, Article 8 of the Convention provides children with an express right to preserve their identity. Details of parentage are an attribute of a child s identity. Therefore, long-accepted notions about a child s parentage must not be frivolously challenged before Courts of Law. Best interests of a child - HELD THAT - A parent may, in the best interests of the child, choose not to subject a child to a DNA test. It is also, antithetical to the fundamentals of the right to privacy to require a person to disclose, in the course of proceedings in rem, the medical procedures resorted to in order to conceive - the reasons for the parent s refusal may be several, and hence, it is not prudent to draw an adverse inference under Section 114 of the Evidence Act, in every case where a parent refuses to subject the child to a DNA test - it is necessary that only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy, the Court can direct such test. Further, a direction to conduct DNA test of a child, is to be ordered even rarely, in cases where the paternity of a child is not directly in issue but is merely collateral to the proceeding, such as in the instant case. The impugned judgment of the High Court of Judicature at Bombay dated 22nd November, 2021 and the order of the Family Court, Pune dated 12th August, 2021, are set aside - Appeal allowed. As per V. Ramasubramanian, J. Interplay between Sections 112 and 114(h) of the Evidence Act - HELD THAT - It is interesting to note that the Evidence Act does not include legitimacy of birth during marriage, either under the category of a fact which may be presumed or under the category of a fact which shall be presumed . On the contrary, the Act places birth during marriage as conclusive proof of legitimacy. But Section 112 keeps a window open, enabling a party to the marriage who questions the legitimacy of the child, to show that he/she had no access to the other, when the child could have been begotten. In the case on hand, the very pleading of the respondent in his petition for divorce before the Family Court is that the second child-Master X was born on 17.7.2013 and that the respondent came to know about the alleged adulterous behavior of the appellant herein, only on 14.9.2016. The pleading of the respondent extracted above to the effect that after September 2016, he has had no physical relationship with the appellant-wife means that he has at least had access to the wife both at the time when the child was begotten and for a full period of three years even thereafter. Therefore, the conclusive proof under Section 112 has actually come into play in this case. There is another fallacy in the argument of the respondent. It is the contention of the respondent that he is seeking an adverse inference to be drawn only as against the wife under Section 114(h), upon the refusal of the wife to subject the child to DNA test. But the stage at which the wife may refuse to subject the child to DNA, would arise only after the Court comes to the conclusion that a DNA test should be ordered. To put in simple terms, there are three stages in the process, namely, (i) consideration by the Court, of the question whether to order DNA test or not; (ii) passing an order directing DNA test, after such consideration; and (iii) the decision of the wife to comply or not, with the order so passed. The respondent should first cross the outer fence namely whether a DNA test can be ordered or not. It is only after he convinces the Court to order DNA test and successfully secures an order that he can move to the inner fence, regarding the willingness of the wife to abide by the order. It is only at that stage that the respondent can, if at all, seek refuge under Section 114(h). Section 114(h) has no application to a case where a mother refuses to make the child undergo DNA test. It is to be remembered that the object of conducting a DNA test on the child is primarily to show that the respondent was not the biological father. Once that fact is established, it merely follows as a corollary that the appellant was living in an adulterous relationship. What comes out of a DNA test, as the main product, is the paternity of the child, which is subjected to a test. Incidentally, the adulterous conduct of the wife also stands established, as a by-product, through the very same process. To say that the wife should allow the child to undergo the DNA test, to enable the husband to have the benefit of both the product and the byproduct or in the alternative the wife should allow the husband to have the benefit of the by-product by invoking Section 114, if she chooses not to subject the child to DNA test, is really to leave the choice between the devil and the deep sea to the wife - in cases of this nature the Court must bear in mind that Section 114 uses only the word may and not the word shall . Therefore, the constraints articulated in the exposition to Illustration (h) under Section 114 may dissuade the Court not to presume at all - the contention of the respondent that what is sought to be invoked is only Section 114(h) and not Section 112, is rejected. Whose rights, are to tilt the balance in the scales of justice? - HELD THAT - Attractive as it may seem at first blush, the said argument does not carry any legal weight. 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 Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed.

Summary

Issues Involved:
1. Presumption of Paternity under Section 112 of the Indian Evidence Act.
2. Admissibility and necessity of DNA testing to determine paternity and allegations of adultery.
3. Drawing adverse inference under Section 114(h) of the Indian Evidence Act.
4. Best interests and rights of the child in the context of DNA testing.

Issue-wise Detailed Analysis:

1. Presumption of Paternity under Section 112 of the Indian Evidence Act:
The law presumes that a child born during the subsistence of a valid marriage is legitimate and the husband is the father unless it is shown that the parties had no access to each other at the relevant time. This presumption is conclusive unless rebutted by strong evidence. The Court emphasized that "access" or "non-access" means the opportunity for sexual relationship, not necessarily actual cohabitation. The presumption of legitimacy under Section 112 is based on public morality and policy, aiming to prevent unwarranted inquiries into the paternity of a child.

2. Admissibility and Necessity of DNA Testing to Determine Paternity and Allegations of Adultery:
The Court discussed that DNA testing, while scientifically accurate, should not be ordered routinely in matrimonial disputes. It should only be directed in cases where it is the only means to establish the truth, and there is no other way to prove the allegations. In this case, the respondent-husband had not raised a specific plea of non-access, nor had he established a strong prima facie case to justify a DNA test. The Court noted that the respondent claimed to have other evidence, such as call recordings and a diary, which could be used to prove the allegations of adultery without resorting to DNA testing.

3. Drawing Adverse Inference under Section 114(h) of the Indian Evidence Act:
The Court analyzed the interplay between Sections 112 and 114(h) of the Evidence Act. It held that Section 112 deals with conclusive proof of legitimacy, which cannot be rebutted by any amount of evidence unless non-access is proved. Section 114(h) allows the Court to draw an adverse inference if a party refuses to answer a question, but this is discretionary and not mandatory. The Court concluded that adverse inference under Section 114(h) cannot be drawn against the mother for refusing to subject the child to a DNA test, as it would compromise the child's best interests and privacy.

4. Best Interests and Rights of the Child in the Context of DNA Testing:
The Court highlighted the importance of considering the child's best interests and rights, including the right to privacy and identity. It emphasized that children should not be subjected to forensic/DNA testing frivolously, especially when they are not parties to the proceedings. The Court referred to the Convention on the Rights of the Child, which protects children's rights to privacy, bodily integrity, and identity. It concluded that conducting a DNA test in this case would not serve the child's best interests and would cause unnecessary psychological harm and social stigma.

Conclusion:
The Supreme Court allowed the appeal, setting aside the orders of the Family Court and the High Court that directed the DNA test. The Court held that the respondent-husband had not made out a prima facie case to justify the DNA test and that the presumption of legitimacy under Section 112 of the Evidence Act remained intact. The Court also ruled that no adverse inference could be drawn against the appellant-wife for refusing the DNA test, and the allegations of adultery must be proved by other evidence. The judgment emphasized the protection of the child's rights and best interests, aligning with the principles of privacy and identity under the Convention on the Rights of the Child.