DNA Test| Children Have Right To Not To Have Their Legitimacy Questioned Frivolously As It Is Attribute Of Right To Privacy- SC

A Supreme Court Bench of Justice V Ramasubramanian and Justice BV Nagarathna has observed that the DNA tests of children born during a valid marriage may be directed only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act.

In that context, the Court said that "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. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses."

Senior Counsel Huzefa Ahmadi appeared for the appellant-wife, while Senior Counsel Kapil Sibal appeared for the respondent-husband.

In this case, the respondent-husband had filed a petition for divorce and a petition seeking custody of two children against the appellant-wife. The respondent contended that the appellant was in an adulterous relationship, and he filed an application seeking a direction that the second child is subject to DNA testing in order to ascertain his paternity. 

The Family Court passed an order in favor of the respondent by allowing DNA testing. The High Court affirmed the order of the Family Court.

On hearing the parties and examining the relevant provisions of the law, the Court framed the following principles as to the circumstances under which a DNA test of a minor child may be directed to be conducted.

"i. That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions.

ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed. 

iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding. 

iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test. 

v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc."

Further, the Court stressed that children have the right to not have their legitimacy questioned frivolously in Court of Law. In that context, the Court observed that "Genetic information is broadly understood as shedding light on a person's essence, as going to the very heart of who he/she is. That kind of intimate, personal information, which is so highly valued in our society, is precisely what the law protects in the right of privacy, which extends even to children. Further, 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. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses."

The Court also emphasized that under the Convention on the Rights of Child, children have some rights to privacy, autonomy and identity. In light of the same, the Court observed that "The concept of privacy for a child may not be equivalent to that of an adult. However, the evolving capacity of children has been recognised and the Convention acknowledges the control that individuals, including children, have over their own personal boundaries and the means by which they define who they are in relation to other people. Children are not to be deprived of this entitlement to influence and understand their sense of self simply by virtue of being children. Further, Article 8 of the Convention provides children with an express right to preserve their identity. Details of parentage are an attribute of a child’s identity. Therefore, long-accepted notions about a child’s parentage must not be frivolously challenged before Courts of Law." 

In furtherance, the Court observed that the best interests of the child should be given primary consideration in actions involving children. Giving detailed reasonings towards how the DNA testing of a child is against his best interests, the Court held that "it is necessary that only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy, the Court can direct such test. Further, a direction to conduct DNA test of a child, is to be ordered even rarely, in cases where the paternity of a child is not directly in issue but is merely collateral to the proceeding, such as in the instant case."

Holding that "In the circumstances of the present case, we are unable to accept that a DNA test would be the only way in which the truth of the matter can be established. The respondent-husband has categorically claimed that he is in possession of call recordings/transcripts and the daily diary of the appellant, which may be summoned in accordance with law to prove the infidelity of the appellant.", the Apex Court allowed the appeal. Consequently, the order of the High Court and the Family Court was set aside.

The Court thus imposed a cost of Rs. 1 lakh to be paid by the respondent to the appellant.

Cause Title: Aparna Ajinkya Firodia v. Ajinkya Arun Firodia

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