2023 Supreme(SC) 142

SUPREME COURT OF INDIA
V. RAMASUBRAMANIAN, B.V. NAGARATHNA, JJ.
Aparna Ajinkya Firodia – Appellant
Versus
Ajinkya Arun Firodia – Respondent
Civil Appeal No. 1308 of 2023, SLP (C) No. 9855 of 2022
Decided On : 20-02-2023

IMPORTANT POINTS
(1) Order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case.
(2) Questions as to illegitimacy of a child, are only incidental to the claim of dissolution of marriage on the ground of adultery or infidelity.
(3) Question as to whether a DNA test should be permitted on child, is to be analysed through prism of child and not through prism of parents.

Headnote:

Per B.V. NAGARATHNA, J.

(A) Indian Evidence Act, 1872 – Sections 112 and 4 – Hindu Marriage Act, 1955 – Sections 13(1)(i) and (ia) – Paternity of child – DNA Test – Section 112 refers to point of time of birth as crucial aspect and not to time of conception – Time of conception is relevant only to see whether husband had or did not have access to wife – Birth during continuance of marriage is conclusive proof of legitimacy unless non-access of party who questions paternity of child at the time child could have been begotten is proved by said party – Questions as to illegitimacy of a child, are only incidental to claim of dissolution of marriage on the ground of adultery or infidelity – When a child is born during subsistence of lawful wedlock, it would mean that parents had access to each other – Presumption of legitimacy of birth of child is rebuttable by way of strong evidence to the contrary – Since Section 112 creates a presumption of legitimacy that a child born during subsistence of a marriage is deemed to be legitimate, a burden is cast on person who questions legitimacy of child – Access or non-access does not mean actual cohabitation but means the existence or non-existence of opportunities for sexual relationship. (Paras 8.1, 8.2, 8.3 and 24)

(B) Indian Evidence Act, 1872 – Sections 112 – Paternity of child – DNA Test – Presumption under Section 112 can be drawn only if child is born during continuance of a valid marriage and not otherwise – Access or non-access must be in context of sexual intercourse – Where husband and wife have co-habited together and no impotency is proved, child born from their wedlock is conclusively presumed to be legitimate, even if wife is shown to have been, at the same time, guilty of infidelity – Fact that a woman is living in adultery would not by itself be sufficient to repel conclusive presumption in favour of legitimacy of a child – Non-access has to be proved as a fact in issue and same could be established by direct and circumstantial evidence of unambiguous character – If a husband and wife were living together during time of conception but DNA test reveals that child was not born to husband, conclusiveness in law would remain irrebuttable – What would be proved is adultery on part of wife, however, legitimacy of child would still be conclusive in law – Conclusive presumption of paternity of a child born during subsistence of a valid marriage is that child is that of husband and it cannot be rebutted by a mere DNA test report – What is necessary to rebut is proof of non-access at the time when child could have been begotten. (Paras 8.4, 8.5, 8.6 and 8.7)

(C) Indian Evidence Act, 1872 – Illustration (h) to Section 114 – Presumption of fact and presumption of law – Presumption under the Section is discretionary and not mandatory – Presumptions are established on the basis of facts and Court enjoys discretionary power, either to presume a fact or not – Facts of present case neither warrant a direction to conduct a DNA test of child nor do they justify drawing adverse inference as against appellant wife, under Section 114 of Evidence Act, on her refusal to subject her son to DNA test. (Paras 9.2 and 10.1)

(D) Constitution of India – Article 21 – Right to personal liberty – DNA Profiling – While directing DNA tests as a means to prove adultery, Court is to be mindful of consequences thereof on children born out of adultery, including inheritance-related consequences, social stigma, etc. – Law does not contemplate use of DNA tests as exploratory or investigatory experiments for determining paternity – Family Court has power to direct a person to undergo medical tests, including a DNA test and such order would not be in violation of right to personal liberty under Article 21 of Constitution – However, Court should exercise such power only when it is expedient in interest of justice to do so, and when fact situation in a given case warrants such exercise – Order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case – Court would not be justified in mechanically directing a DNA test of a child, in a case where paternity of a child is not directly in issue but is merely collateral to proceeding. (Paras 11.1, 11.2, 12 and 15)

(E) Constitution of India – Articles 19 and 24(3) – Right to privacy – Long-accepted notions about a child’s parentage must not be frivolously challenged before Courts of Law – Concept of privacy for a child may not be equivalent to that of an adult – Children have right not to have their legitimacy questioned frivolously before Court of Law – It is imperative that children do not become focal point of battle between spouses – Violations of a child’s bodily integrity that reach threshold of torture or cruel inhuman degrading treatment will never be justifiable, given absolute prohibition on such treatment – Violation of this prohibition will always constitute a violation of a child’s right to privacy – However, right to privacy has a residual application in those cases where there is interference with a child’s physical and/or psychological integrity that does not reach threshold for torture or cruel, inhuman, and degrading treatment. (Paras 17, 19, 20 and 21)

Per B.V. NAGARATHNA, J. (Separate Concurring Opinion)

(A) Indian Evidence Act, 1872 – Sections 112 and 114(h) read with Section 4 – Paternity of child – DNA Test – While dealing with a situation where a presumption in terms of Illustration (h) under Section 114 is sought to be raised, Court has to examine whether refusal of person to answer, is on account of fear that answer may produce an unfavourable result to him in relation to matter in issue or due to fear that such an answer might cause loss to him in a matter unconnected to it – If a party to a marriage establishes that there was no access to other party to marriage, then shield of conclusive proof becomes unavailable – If on the contrary, such a party is not able to prove that he had no access to other party to marriage, then e shield of Section 112 protects other party to such an extent that it cannot be pierced by any amount of evidence in view of prohibition contained in Section. (Paras 11 and 17)

(B) Indian Evidence Act, 1872 – Sections 112 and 114(h) read with Section 4 – Hindu Marriage Act, 1955 – Sections 13(1)(i) and (ia) – Paternity of child – DNA Test – Allegations of adultery by wife – Object of conducting a DNA test on child is primarily to show that respondent was not biological father – Once that fact is established, it merely follows as a corollary that appellant was living in an adulterous relationship – Question as to whether a DNA test should be permitted on child, is to be analysed through prism of child and not through prism of parents – Child cannot be used as a pawn to show that mother of child was living in adultery – Section 114(h) has no application to a case where a mother refuses to make child undergo DNA test – Family Court as well as High Court were wrong in allowing application of respondent for subjecting child to DNA test – Appeal allowed. (Paras 29, 33 and 36)

Facts of the case:

By an order dated 12th August, 2021, the Family Court, Pune, allowed the application filed by respondent seeking DNA test of Master Arjun and further observed that in the event that appellant fails to comply with the directions of the Court, the allegations of adultery as against her would be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114 of the Indian Evidence Act, 1872.

Findings of Court:

No adverse inference can be raised in the instant case regarding the legitimacy or paternity of Master Arjun vis-à-vis the appellant herein, on her declining to subject Master Arjun to a paternity test. Further, on the appellant declining to subject Master Arjun to a paternity test, no adverse inference can be drawn as regards the alleged adultery on the part of the appellant herein can be raised. In our view, the allegation of adultery has to be proved by the respondent herein de hors issue of paternity of Master Arjun.

Result : Appeal allowed with costs.