Astha
The Allahabad High Court, in a divorce petition, said that a D.N.A. test is the most legitimate way to prove one’s assertions of infidelity against the spouse.
The Bench of Justice Vivek Agarwal said, “This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal.”
The petition was filed by the wife under Article 227 of the Indian Constitution, challenging the Additional Principal Judge’s decision under Section 3 of the Hindu Marriage Act, 1955.
As per the order, the issue before the Court was whether, in a divorce petition filed by the husband based on adultery, it could direct a wife to undergo a D.N.A. test or refuse.
But, if she is willing to undergo the test, “then findings of the D.N.A. test will determine conclusively the veracity of accusation leveled by the petitioner-husband against her.”
Furthermore, the order said that, “in case, wife refuses to undergo a D.N.A. test, then whether a presumption can be drawn by the Court against the wife that is to say whether report of D.N.A. test is just a piece of expert evidence or a conclusive or a substantive piece of evidence.”
The learned family court had placed its reliance over two cases of the Supreme Court:
- Dipanwita Roy Vs. Ronobroto Roy, 2015 (1) SCC D 39 (SC)
- Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, 2014 (2) SCC 576
In case 1, the husband had filed the divorce petition on the grounds of adultery, and the adulterer was named. The husband sought D.N.A. test of the child born to his wife and himself.
The Family Court had dismissed the plea, whereas the High Court had reversed the order. The Supreme Court had upheld the High Court’s order.
In case 2, the top court noted that:
“The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary.”
It further observed:
“We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth.”
“Truth must triumph” is the hallmark of justice. (emphasis is ours). This Court has therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act.”
The current petition failed as the High Court did not find any arbitrariness in the Family Court’s judgment.
