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).
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