DNA Paternity Test Is Conducted In Exceptional Cases; Child Can’t Be Used As Weapon To Get Divorce On Adultery Ground: Rajasthan HC

The Rajasthan High Court, Jodhpur Bench has observed that the DNA paternity test is to be conducted only in exceptional cases and hence, the child cannot be used as a weapon to get a divorce on the ground of adultery.

A Single Bench of Justice Pushpendra Singh Bhati held, “This Court is quite conscious of the fact that any frivolous claim of the husband or wife would have much adverse affect on the mental health of the child; though the husband has a right to prove adultery on the strength of cogent evidence against his wife. … the DNA Paternity Test requires to be conducted only in exceptional cases, and therefore, the child cannot be used as a weapon to get divorce on ground of adultery, on the strength of outcome of a DNA Paternity Test.”

The Bench also held that conducting of the DNA Test can only be directed, when the case falls outside the presumption as provided under Section 112 of the Indian Evidence Act, 1872.

Senior Advocate Sachin Acharya and Advocate Jitendra Choudhary appeared on behalf of the petitioner.

In this case, a plea was preferred against the order passed by the Udaipur court by which it had rejected the petitioner’s plea to amend the divorce pleading on the basis of the DNA Paternity Test of the son while claiming the same to be a subsequent development in the case before the Family Court. The DNA Paternity Test Report revealed that he is not the father of the said child.

An application was filed by the petitioner under Section 13 of the Hindu Marriage Act, 1955 seeking a divorce decree before the Family Court against his wife. The ground as raised in the said application was cruelty and not adultery and the Family Court rejected the same.

The High Court in view of the above facts noted, “The husband thus, cannot take undue advantage of DNA Test so as to shirk away from his obligation as a father of the child. … the DNA Paternity Test cannot be conducted or ordered to be conducted in a routine and mechanical manner, because it would certainly adversely affect the very mental health of the child. It is thus, necessary to see whether there is any access between the husband and wife.”

The Court further noted that children’s rights are very crucial for any nation as the future prospects of any country depend upon the mental and physical health of the children which is also enshrined under the Constitution of India as well as various laws for protecting the rights of the child and therefore, such rights cannot be permitted to be affected, amongst others, by the matrimonial dispute between the husband and wife, more particularly, for their individual benefits.

“… it is necessary for the party concerned to firstly prove that there was no access between the husband and wife, and only thereafter, the benefits of exceptional exclusion from the purview of Section 112 of the Indian Evidence Act, 1872 can be extended to the aggrieved party. … This Court thus finds that the requirement of the DNA Paternity Test can only be in the rarest of the rare and exceptional cases, while duly keeping in mind the best interest of the child”, observed the Court.

The Court said that it must keep into paramount consideration the mental and physical health of a child and the aspects adversely affecting it. It said that it is high time for society and law to realize the importance of the child and childhood vis-a-vis the matrimonial disputes, as losing and winning in a marriage is having a dwarfed impact, when it is compared with losing childhood, in terms of victimizing the child or sacrificing his constitutional right of dignity, at the altar of matrimonial conflicts.

“This Court also finds that the DNA Test is invading upon the rights of a child, which may range from affecting his property rights, right to lead a dignified life, right to privacy and right to have the confidence and happiness of being showered with love and affection by both parents”, also said the Court.

The Court observed that such a case has to be seen through the prism of the child and not through the prism of the cantankerously fighting parents. It further observed that the child cannot be used as a pawn in divorce litigation, where either of the parents wants to get rid of the spouse while sacrificing the crucial rights of the child to dignified parenthood, which shall not only cause an unfathomable misery upon the rights of the child but also create a permanent dent in his existence/Psyche.

“The pain of winning or losing a battle of divorce amongst the contesting spouses is much trivial when compared with the rights of the child to have dignity and parenthood. … Therefore, while choosing between the sanctity of marriage and sanctity of the childhood, the Court has no option but to tilt towards the sanctity of the life, i.e. tilting towards the sanctity of the childhood. The parties may or may not lose the marriage, but the spirit of justice cannot afford to lose the child/childhood, as no Court can shut its eyes, so as only to achieve the goal of justice in matrimonial redressals, while losing the battle of parenthood, being detrimental to the childhood”, concluded the Court.

Accordingly, the Court dismissed the plea.

Cause Title- Deepak Soni v. Anamika (Neutral Citation: 2023/RJJD/016587)

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