Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Samar Veer, a third-year law student at National Law University, Delhi. 

The Supreme Court of India laid down new guidelines Monday on the circumstances of DNA testing to ascertain the paternity of a child while adjudging a divorce proceeding. The husband in the case sought a DNA test on his second child in order to prove a claim of adultery against his wife.

The guidelines were laid down in the judgment delivered by Justice B.V. Nagarathna and Justice V. Ramasubramanian in response to an application filed by the wife in the divorce petition, who was challenging the upholding of a Family Court’s order by the Bombay High Court in Writ Petition (Civil) 7077 of 2021, which had allowed a DNA test to be conducted on their minor child at the behest of the husband.

The bench of judges noted-“Children have the right not to have their legitimacy questioned frivolously before a Court of Law. This is an essential attribute of the right to privacy.”

It further observed that as per Section 112 of the Indian Evidence Act, 1872, it is presumed that the birth of a child during the continuance of a valid marriage or within 280 days of its dissolution, is conclusive proof of the child’s legitimacy, unless it is proved that the parties to the marriage had no “access” to each other, at any time the man could have begotten a child. The Court firmly held that the DNA test of a child to ascertain paternity may only be ordered “only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act.”  It was made clear that as part of any valid marriage, cohabitation is to be expected. However, cohabitation per se is not conclusive proof of “access” to one another in a way that there would be the possibility of a sexual relationship. Conversely, parties to the marriage may have had “access” to each other even in the absence of cohabitation.

An additional observation was made with regard to Section 114 of the Indian Evidence Act, which grants courts the power to presume certain facts in the ordinary course of human affairs and business. Under this Section, a presumption may be made against a person who refuses to answer a question the law does not compel them to. It would be presumed that if the person does in fact answer the question, it would be unfavourable to them. In context of this case, the two-judge bench clarified that the Court has discretion to make such presumptions and may choose not to. As a result, if a parent refuses to subject her child to a DNA test, a negative presumption would not be made since a parent would be deemed to have done so in order to protect the interests of their child.  Children are not to be treated as “material objects” and have their parentage frivolously questioned, especially considering the psychological impact and identity crisis it could bring forth, the Court held.

Referring to Article 8 of the United Nations Convention on the Rights of the Child, it was further stated that even if a child’s right to privacy may not be on the same footing as that of an adult, it is irrefutable that every child has a right to establish their personal boundaries, in addition to establishing their own identity. The Convention understands and acknowledges this.

Finally, it was held that a DNA test is only to be ordered when there is no alternative means to resolve a controversy in exceptional and deserving circumstances where the question of a child’s paternity is the primary dispute and not when it is “merely collateral to the proceeding.”

It is encouraging to see a shift towards a more child-centric approach in matrimonial disputes. Although, the offence of adultery is not excused (as the Court made abundantly clear in this instance), it was necessary to tilt the balance in favour of the rights of the child rather than the rights of the parents, since the child is not a pawn in a dispute between two adults.  Often, the heated battles that tend to crowd the doors of family courts generate negative by-products in the form of psychological trauma and suffering on the child for no fault of theirs.

Further, the usage of stronger language to make it unequivocally clear that absolute necessity is a prerequisite to ordering a DNA test by examining the case of Dipanwita Roy vs. Ronobroto Roy (2014) and adroitly applying the principles there, is also a good and straightforward example of how precedents must be applied in a nuanced and logical manner. Although the case is significant with respect to this subject, the facts are obviously, different. Hence, it goes without saying that a precedent cannot be mechanically applied to a fresh set of facts without any room for nuance and adaptability. The 2014 judgment asserted the importance of the DNA test and how it is undoubtedly the best and most scientific means to ascertain paternity, but it may be employed only when absolutely needed.

In the current case, the facts were different and a DNA test was not absolutely necessary (as noted above), so preventing a DNA test was hence, the right decision and a shrewd application of a crucial precedent. The idea is simple as much as it is significant.

The continued emphasis on protecting and fostering the rights of the child in both these judgments is also a positive step needed for implementing the UN Convention on Child Rights in its totality, born out of a human desire to create a nurturing environment for those who will inherit the world we make for them. As the Preamble to the Convention states- “…the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding…”