DNA testing for paternity in divorce proceedings requires a strong prima facie case, balancing privacy rights against the need for truth.

J U D G M E N T

Jyothindranath, J.

The facts in this case reminds the words of a French Philosopher, Michel de Montaigne - “a good marriage would be between a blind wife and a deaf husband”. A husband aged now 77 years and a wife aged 68 years are parties in a divorce proceeding before a Family Court. The ground alleged is adultery/infidelity. The husband is the petitioner. It is the case of the petitioner that the wife told him, rather declared in the presence of the adulterer that three children born in the wedlock are not his children but adulterer is the the father. After hearing the said declaration, the petitioner moved the above referred petition for divorce.

2. An application was filed as I.A. 1931/2009 in the above divorce O.P. for a DNA examination. As per an order dated 29.11.2012, in I.A.No.1931/2009 the trial court opined that “it is better to allow the petition”. When the matter was taken up before this court, in O.P.(F.C) 2578/2013, it was ordered to consider the matter in the proper perspective after hearing the affected parties, in the light of the judgment of Hon'ble Apex Court inBhabani Prasad Jena v. Orissa State Commission For Women [ (2010) 8 SCC 633 ]. Thereafter the impugned order of dismissal was passed by the Family Court.

3. It can be seen that there is no dispute regarding the marriage or the relationship in between the petitioner herein and the first respondent/wife. The dispute is whether the DNA test is necessary or not. Before discussing the matter, the dictum laid down by the Hon'ble Apex Court in Bhabani Prasad's case (supra) is relevant to be considered. It was held by the Hon'ble Apex Court in the said decision as follows:

“21. In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tool which result in invasion of right to privacy of an individual an may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardize an innocent child even though his mother and her spouse were living together during the time of conception.

22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.

23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu and Sharda . In Goutam Kundu it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda while concluding that matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie cas