APARNA AJINKYA FIRODIA V. AJINKYA ARUN FIRODIA
Justice V. Ramasubramanian, Justice B. V. Nagarathna
Whether DNA test of a child can be directed in divorce proceedings to prove the ground of adultery.
The husband (Respondent) in an ongoing divorce proceeding filed an application to ascertain the paternity of the second child born to his wife during their marriage by a deoxyribonucleic acid test (“DNA test”). The Family Court allowed it and the decision was affirmed by the Bombay High Court.
The wife (Petitioner) approached the Supreme Court against the decision of the Bombay High Court.
The Supreme Court held that in this case it is not in the best interest of the child to allow the DNA test because the ultimate object for demanding DNA test is not for determining parentage of the child but for proving allegations of adultery (extramarital relations) during the marriage, which can be proved by adducing any other evidence. The Court also held that children have the right not to have their legitimacy questioned frivolously before a court of law. This is an essential attribute of their right to privacy. The judgment of the Court was authored by Justice B.V. Nagarathna and signed by Justice V. Ramasubramanian. Justice V. Ramasubramanian also wrote a separate concurring opinion.
DNA Tests of Children : Principles
Justice Nagarathna summarised the principles of when a Court should direct a DNA test on a minor (¶12):
DNA tests of children shall not be conducted in a routine manner in case of matrimonial disputes unless there is no other way of proving infidelity .
Section 112 of Indian Evidence Act, 1872 provides that a child born during a valid marriage is considered to be the legitimate child of the husband. A DNA test of a child born during continuance of a valid marriage can only be directed when the husband can prove he did not have access to the wife.
No DNA Test is justified when paternity of a child is not directly in issue, but is merely collateral to the proceeding .
While directing DNA tests to prove adultery, the Court should consider the consequences on the children born out of adultery, including inheritance-related consequences and social stigma.
Right to Privacy of Children
The Supreme Court noted that a child's right to privacy is not equal to that of an adult. However, children have their own identity, and Article 8 of the United Nations Convention on Rights of Child provides children with an express right to preserve their identity (¶21). The Court noted that one's genetic information is personal and intimate and is protected by the right to privacy applicable to children(¶16). The Court held that the details of their parentage form an essential attribute of a child's identity and therefore they should not be challenged frivolously before the courts (¶21).
Best interests of a child
The Supreme Court stated that the interest of the child should be given primary consideration in actions involving children. The Court noted that a revelation of illegitimacy of a child through a DNA test can not only cause confusion in the mind of the child but a quest to find out who is his/her real father (¶22). The Court observed that not knowing who one’s father is creates a mental trauma in a child, and may lead to a bittering relationship between the child and parents (¶22.3). Further, this also creates lots of social stigma towards both the child and the mother. Hence, the Court held that a parent may, in the best interests of the child, choose not to subject a child to a DNA test (¶22.3).
Justice V. Ramasubramanian in his separate opinion observed that whether DNA tests should be allowed or not should be decided by looking from the child's perspective and not from the perspective of the parents (¶33 J. Ramasubramanian). The child cannot be used as a means to prove adulterous (out of marriage) relations. The adulterous conduct of the wife can be proved by the respondent by advancing other evidence but the identity of the child should not be compromised (¶33 J. Ramasubramanian).
Adverse inference cannot be drawn
J. Ramasubramanian in his separate opinion took note of Illustration (h) under Section 114 of Indian Evidence Act, 1872. It says that if a man refuses to answer a question which he is not compelled to answer by law, the Court may presume that the answer, if given, would be unfavourable to him (¶16 J. Ramasubramanian). J. Ramasubramanian held that if the wife raises an objection as to the DNA test of the child for her benefit, then the presumption under Section 114, illustration (h) can be raised against her. However, if the wife raises objections as to the DNA test of the child in the capacity of a mother for the benefit of her child then no presumption under the said provision can be drawn against her (¶28 J. Ramasubramanian).
REVANASIDDAPPA V. MALLIKARJUN
In 2003, a Division Bench (two judges) of the Supreme Court in Jinia Keotin v. Kumar Sitaram Manjhi (2002 INSC 576) (“Jinia Keotin”) held that a child born from a void marriage (a marriage that does not have any legal effect) or a voidable marriage (a marriage that may be annulled by one spouse) would have no right to claim inheritance in ancestral or coparcenary property (joint-family property). This judgment was later followed in Neelamma v. Sarojamma [(2006) 9 SCC 612] (“Neelamma”) and Bharatha Matha v. R Vijaya Renganathan (2010 INSC 328) (“Bharatha Matha”).
The present appeal at the Supreme Court (Revanasiddappa v. Mallikarjun) was filed against the judgment of the Karnataka High Court by illegitimate sons of one Shri Shivasharanappa. The sons claimed a share in ancestral properties. The wife of Shivasharanappa, along with her two sons, stated that Shivasharanappa had married a second woman while still married to her and therefore, the children born out of this second marriage are not entitled to any share in Shivasharanappa’s ancestral property.
At the Supreme Court, a Division Bench (two judges) in Revanasiddappa v. Mallikarjun (2011 INSC 251) doubted the correctness of the decisions in Jinia Keotin, Neelamma, and Bharatha Matha and referred the case to a larger bench of three-judges.
The Supreme Court held that children born out of void or voidable marriages are entitled to a share in their parents' ancestral properties. The Court clarified that such children are not coparceners in the ancestral property (a person who shares equally with others in the inheritance of an undivided property) and cannot claim an equal share in the ancestral property in their own right. However, children from void and voidable marriages are entitled to a right in their parents’ share of the ancestral property. The judgment of the Court was authored by Chief Justice Chandrachud.
Legitimacy of children born out of void or voidable marriages
The Supreme Court found that Section 16 of the Hindu Marriage Act, 1955 (“HMA”) provides that children born out of void and voidable marriages though “illegitimate”, shall be treated as legitimate (¶12). The Court noted that the law has a socially beneficial purpose of removing the stigma of illegitimacy faced by children of such marriages, since the children themselves are innocent (¶3).
Right in Property of Parents
The Supreme Court noted that an illegitimate who is deemed to be legitimate under Section 16(3) of the HMA will only have inheritance rights in the property of their parents and not have any rights in the property of a person other than their parents (¶42).
The Court noted children born out of valid marriage are coparceners in the Hindu joint-family property and they have a share in the ancestral property apart from and equal to their parents. On the death of their parents, they are then equally entitled to a share of their parents property. On the other hand, children born out of void and voidable marriage are not coparceners in the Hindu-Joint family property, they are only entitled to a share in their parents’ property (¶43).
The Court noted that to ascertain the property of parents, Section 6(3) of the Hindu Succession Act, 1956 provides that for a Hindu Mitakshara coparcener, their share in the property would be the part that would have been allotted to him if a partition had taken place immediately before his death (¶40). Thus, the Court concluded that the children born out of void and voidable marriage are entitled to: (i) a share in the ancestral property that would be allotted to their parents on partition, and (ii) a share in the self-acquired property of the parents (¶50).
IN RE INTERPLAY BETWEEN ARBITRATION AGREEMENTS UNDER THE ARBITRATION AND CONCILIATION ACT 1996 AND THE INDIAN STAMP ACT 1899. V.
Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justice Sanjay K. Kaul, Justice Sanjiv Khanna, Justice Bhushan R. Gavai, Justice Surya Kant, Justice Jamshed B. Pardiwala, Justice Manoj Misra
In 2011, a Division Bench (two judges) of the Supreme Court in SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd [2011 INSC 508] (“SMS Tea Estates”) held that an arbitration agreement in an unstamped contract is invalid. In February 2020, a three-judge bench of the Supreme Court in Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram v. Bhaskar Raju and Brothers [2020 INSC 194] (“Bhaskar Raju”) followed this ruling in SMS Tea Estates with approval.
In 2021, a three-judge bench of the Supreme Court in N N Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. [2021 INSC 12] (“N N Global 1”) took a view contrary to SMS Tea Estates and held that non-stamping of the contract would not invalidate the arbitration agreement contained in it and the arbitration agreement can be acted upon. Given these conflicting decisions of the Court, a Constitution Bench (five judges) was set up to decide the issue.
In December 2022, a curative petition (final remedy to reconsider a decision by the Supreme Court) was filed in the Supreme Court for reconsideration of the Bhaskar Raju decision. Before the curation petition was finally decided, in April 2023, a Constitution bench of the Supreme Court by a 3:2 majority in N N Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. [2023 INSC 423] (“N N Global 2”) held that N N Global 1 was incorrect and upheld the view taken in SMS Tea Estates. The Court held that an unstamped contract is void (does not have any legal effect) and hence, an arbitration clause in an unstamped contract is not enforceable.
Later, while hearing the curative petition in Bhaskar Raju and considering the larger ramifications and consequences of the decision in N N Global 2 , the Supreme Court referred the case to a Seven-Judge Bench. The present case (In Re: Interplay between Arbitration Agreements under The Arbitration and Conciliation Act 1996 and The Indian Stamp Act 1899) is this reference to the Seven-Judge Bench to decide the correctness of the Constitution Bench decision in NN Global 2.
The Supreme Court held that that arbitration agreement or arbitration clause contained in an unstamped or inadequately stamped contract is valid and can be acted upon. The Court also held that a contract which is not stamped or is inadequately stamped is not void but is only inadmissible in evidence. The Court declared that the decisions in N N Global 2 and SMS Tea Estates were incorrect. The judgment of the Court was authored by Chief Justice Chandrachud. Justice Sanjiv Khanna wrote a separate concurring opinion.
The difference between inadmissibility and voidness
The Supreme Court noted that a void agreement is unenforceable in a Court of law i.e. it cannot be given effect to, while an inadmissible document can merely not be introduced as evidence in a Court of law (¶44). The Court observed that while Section 35 of the Indian Stamp Act 1899 (“Stamp Act”) makes an unstamped or inadequately stamped document inadmissible in evidence, non-stamping under the Stamp Act does not render the document void (¶48, ¶11 J. Khanna). The Court noted that the non-payment of stamp duty is a curable defect as the Stamp Act itself provides under Section 42(2) that once the required stamp-duty is paid, the instrument will become admissible in evidence (¶48). In contrast, the Court noted that there is no procedure by which a void agreement can be cured (¶48).
Minimising Judicial Interference
The Supreme Court noted that one of the main objectives of the Arbitration and Conciliation Act 1996 (“Arbitration Act”) is to minimise the supervisory role of courts in the arbitral process (¶74). Section 5 of Arbitration Act states that for matters covered by the Arbitration Act, no court can interfere unless the law explicitly allows for it. Section 5 shows the legislative intent of limiting judicial intervention during the arbitral process (¶75). Section 8 of the Arbitration Act mandates courts to refer the parties to arbitration if there is prima facie a valid arbitration agreement (¶136). When referring parties to arbitration, the court cannot conduct a mini-trial by allowing parties to produce evidence regarding validity of an arbitration agreement (¶155). Section 11 of the Arbitration Act deals with the appointment of arbitrators, Section 11 allows intervention by courts only when parties fail to appoint an arbitrator (¶139). Section 11(6A) inserted by Arbitration Amendment Act of 2015 states that while appointing an arbitrator, the Court shall confine itself to the examination of existence of an arbitration agreement (¶144). The Court found that the intention of the legislature in adding Section 11(6A) was to limit the scope of the referral court’s jurisdiction to only one aspect – the existence of an arbitration agreement (¶145).
The doctrine of competence-competence
The Supreme Court noted that the doctrine of kompetenz-kompetenz (also known as competence competence) states that arbitrators are empowered to decide on their own jurisdiction (¶115). The doctrine of competence-competence allows the arbitrators to decide on all issues arising out of the underlying contract, including the existence and validity of the arbitration agreement (¶116). Enshrining the competence-competence principle in Indian arbitration law, Section 16 of the Arbitration Act empowers the arbitral tribunal to rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of arbitration agreement (¶120, ¶28 J. Khanna).
The Court noted that once the arbitrators decide a matter, Section 34 of the Arbitration Act allows applications for setting aside arbitral decisions. The Court noted that one of the grounds on which an arbitral award can be set aside is that the arbitration agreement is not valid under law. This indicates that the Arbitration Act does not contemplate the court determining the validity of an arbitration agreement before the arbitrators have had a chance to decide the issue first (¶121).
Justice Khanna in his separate opinion held that an objection related to insufficient stamping or non-stamping of the underlying contract can be decided by the arbitrators (¶1 J. Khanna).
Arbitration Act’s silence on stamp duty
The Supreme Court noted that the Arbitration Act is a self-contained code and hence, provisions of other laws cannot interfere with the working of the Arbitration Act, unless the Act specifically allows for it (¶85). The Court noted that Parliament was aware of the Stamp Act when it enacted the Arbitration Act, yet, the Arbitration does not specify stamping as a pre-condition to the existence of a valid arbitration agreement (¶177).
Intent and Purpose of Stamp Act
The Court noted that the Stamp Act is a fiscal legislation to protect the interests of revenue for the government (¶59), it is not intended to arm litigants with a weapon of technicality by which they can delay the resolution of a case (¶60, ¶19 J. Khanna).
The Court held that the arbitrators will be bound by the Stamp Act and will have authority to enforce the provisions of the Stamp Act (¶184). The Court declared that this interpretation of the law ensures that the provisions of the Arbitration Act are given effect to while not detracting from the purpose of the Stamp Act (¶194).
