Case Commentary By:
Poonam Mavi
Research Intern, Legal WIND
Name of the case: Xxxxx v. Xxxxx
Citation: [2021] SCC Online ker 3458
Date of judgement: 14th September, 2021
Bench: Justice A. Muhamed Mustaque and Justice Kauser Edappagath
Court: The High Court of Kerela
Facts of the case:
The husband (petitioner) of the first respondent (wife) has filed for dissolution of marriage on the ground of cruelty, desertion and adultery and for recovery of money and gold ornament. The main allegation of the petitioner is that the first respondent has been living adulterous life with the second respondent (brother-in-law of petitioner’s wife) and the child born to the first respondent is that of the second respondent. Notably, The marriage was solemnised on July 5, 2006, and the first respondent's child was born on September 3, 2007. The petitioner was serving in the military at the time of the marriage. The petitioner claimed that after 22 days of marriage, he went for his work in Ladakh, and that there was no physical interaction between them during those 22 days or subsequently owing to the first respondent's refusal to cooperate. The petitioner's specific issue was that he was suffering from infertility. To prove infidelity and adulterous act on the part of the first respondent, the petitioner filed IA No.1570/2019 to conduct DNA test of the first respondent's son as also himself as the petitioner had made a particular claim that he was infertile and unable to have a child. The request was denied by the Court on the grounds that the child was an essential party to the petition and that its paternity and legitimacy could not be proved without the child on the party list[i].
Contention by the Petitioner:
1.The learned Counsel for the petitioner argued that without the DNA test, the petitioner spouse would be unable to prove and substantiate the claims he made in his pleadings, and that the court below should have ordered the DNA test.
2.The petitioner has also shown a solid prima facie case for raising a presumption against legitimacy i.e., a certificate provided by an infertility expert, according to which the petitioner is diagnosed with oligoasthenoteratospermia.
Contention by the Respondent:
1.Using Section 112 of the Indian Evidence Act, the learned counsel for the wife contended that once the validity of marriage is established, there is a strong presumption of the legitimacy of children produced from that union, which can only be rebutted by strong and compelling evidence.
2. The counsel argued that even proof of the wife's infidelity is insufficient to dispel this presumption and will not justify a determination of illegitimacy if the husband has had access. The only method to overcome the conclusive presumption imposed by Section 112 of the Evidence Act is for the husband and wife to have no contact, and hence the request for a DNA test cannot be granted in the absence of compelling prima facie proof of non-access.
3. The counsel added that no one can be forced to furnish a blood sample for analysis.
The issue which arose out of the case:
Can DNA test be conducted to determine legitimacy of a child in a divorce petition without the child being on the party array?
The court emphasised that there are two factors for evaluating whether a party is a required party to the proceedings:
1. Such a party must be entitled to some form of relief in relation to the topic at hand in the proceedings;
2. It should not be feasible to pass a valid decree in the absence of such a party.
Hence, the court opined that the initial petition was not for a declaration of a person's legitimacy under S.7(1) r/w Explanation (e) of the Family Courts Act. The petition solely seeks to dissolve the marriage under Section 13 of the Hindu Marriage Act. The presence of a child has no influence on whether or not a petition for dissolution of marriage is granted on the merits. The child's illegitimacy or paternity is only tangentially related to the petition for dissolution of marriage based on adultery or infidelity. The presence of the child is not required to determine the remedy sought.
Judgment
The court opined that in Dipanwita Roy v. Ronobroto Roy[ii], The Supreme Court ruled that DNA testing is the most authentic and scientifically flawless method for proving the husband's allegations of adultery. This should be considered as the most legitimate, rightful, and correct way for the woman to refute the assertions made by the respondent-husband and prove that she had not been unfaithful, adulterous, or disloyal. If the appellant-wife is correct, she will be shown to be correct."
Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik[iii], The court decided that the result of a real DNA test is scientifically accurate, and that when there is a disagreement between a legally required conclusive proof and a proof based on scientific advances that is widely acknowledged as right, the latter must succeed.
According to a certificate provided by an infertility expert, the petitioner is diagnosed with oligoasthenoteratospermia. Low sperm count, sperm motility, and poor sperm morphology are all symptoms of this illness. Male infertility is caused by this most prevalent reason. The petitioner has no chance of having the child, according to the doctor.
As a result of the supreme court's observations and the evidences provided by the Petitioner, the court opined that when a husband seeks dissolution of marriage alleging adultery or infidelity on the part of the wife and disputing the paternity of the child born during the marriage's duration, the court can order DNA testing to establish his assertion of infidelity or adultery without explicitly disturbing the presumption contemplated under section 112 of the Evidence Act with regard to the legitimacy of the child if a strong prima facie case is made out.
Case analysis:
In a ruling, the Supreme Court stated that if there is no proof of adultery, no DNA test should be performed. The court went on to say that there must be some primary evidence to substantiate the adultery claim before the court may order the scientific evidence of DNA testing to be used as secondary evidence[iv]. Here in this case, the petitioner has submitted the medical certificate that he had "oligoasthenoteratospermi," a disorder characterised by low sperm count, poor sperm motility, and aberrant sperm morphology, and is the most prevalent cause of male infertility. Corroboration was provided by a doctor who testified that the petitioner (husband) had no chance of having the child.
It was also observed that the woman had failed to comply with the directive when the Family Court in Nedumangad ordered a DNA test on the husband's request during the wife's petition seeking maintenance for the child. As a result, the court deemed the primary evidence to be sufficient to issue an order for DNA testing of both the child and the Petitioner. Despite the fact that the court may have deemed the reasons to require Child's DNA testing to be valid. However, when viewed through the opposite lens, it is evident that the child's fundamental right to privacy and personal liberty has been violated.
Conclusion
The court gave the petitioner permission to conduct DNA tests on him and the first respondent's child based on the petitioner's strong primary evidence of infidelity and adultery, which made the order of DNA testing necessary to reach a reasonable conclusion. The court ordered that the DNA samples of the child and the petitioner shall be obtained by the laboratory in the presence of the petitioner and the first respondent.
References: [i] [2021] SCC Online ker 3458 [ii][2014] SC AIR 418, [2014] AC 9744 [iii][2014] 2 SCC 576, [2014] CAC 24 [iv] Times of India, No DNA test if there is no proof of adultery: Supreme Court, https://timesofindia.indiatimes.com/india/no-dna-test-if-there-is-no-proof-of-adultery-supreme-court/articleshow/85021297.cms (Accessed on 16 November 2021)
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