DNA test most authentic way to prove if wife has been unfaithful or not: Allahabad high court | Allahabad News


PRAYAGRAJ: The Allahabad high court has ruled that a DNA test to establish a child’s paternity is the “most legitimate and scientific means” that can be used by a man to assert claims of his wife’s infidelity. The court added that the test is also the wife’s “most authentic way to establish that she had not been unfaithful, adulterous or disloyal”.
The ruling came while the court was hearing a plea regarding whether a husband, in a divorce petition, can direct the wife to undergo a DNA test or refuse to undergo the test himself.
“The DNA test is the most legitimate and scientifically perfect means which the husband could use to establish his assertion of wife’s infidelity. Further, the DNA test should simultaneously be taken as the most authentic, rightful and correct means also with the wife for her to rebut the assertions made by the husband and to establish that she had not been unfaithful, adulterous or disloyal,” observed Justice Vivek Agarwal while hearing a petition filed by one Smt Neelam that challenged an order (dated September 22, 2018) passed by the additional principal judge, family court, Hamirpur under Section 13 of the Hindu Marriage Act, 1955.
The only issue was whether a court in a divorce petition under Section 13 of the Hindu Marriage Act, 1955, filed by the husband on the ground of adultery, can direct the wife either to undergo a DNA test or refuse to undergo a DNA test. But in case she elects to undergo a DNA test, then findings of the DNA test will determine conclusively the veracity of accusation levelled by the petitioner-husband against her.
It is further mentioned that in case the wife refuses to undergo a DNA test, then whether a presumption can be drawn by the court against the wife that is to say whether report of DNA test is just a piece of expert evidence or a conclusive or a substantive piece of evidence.
The marriage between Neelam and Ram Asrey took place on April 28, 2004. Admittedly, three daughters were born from this wedlock. According to the husband-respondent, he is not living with his wife, i.e., the petitioner since January 15, 2013, and there has been no resumption of cohabitation since then.
Further, on June 25, 2014, he (husband) had given customary divorce to the petitioner and has been paying maintenance to her since then. A male child was born to the petitioner on January 26, 2016, in her paternal house. Hence, the ground for the divorce was adultery.
On the other hand, the petitioner filed her objections and objected to the application filed by the husband seeking DNA test on the ground that no legal provision is mentioned in the application. She refuted the claim that there has been no cohabitation between the two since January 15, 2013. She claimed that she was tortured by her husband when she was pregnant and was also driven out of the matrimonial home. She gave birth to a male child on January 26, 2016.
Further, a plea of presumption under Section 112 of the Evidence Act too was raised by the petitioner. According to section 112 of the Evidence Act, the birth during marriage is the conclusive proof of legitimacy.
While dismissing the petition, Justice Agarwal relied on a judgment of the Supreme Court in the case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, wherein the husband’s plea was that he had no access to the wife when the child was begotten stood proved by the DNA test report. Hence, in the face of it, the apex court had said, “We cannot compel the appellant husband to bear the fatherhood of a child, when the scientific reports prove to the contrary.”
The apex court had further said that “the interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”
Thus, rejecting the pleas of the petitioner, the court declined to interfere in the order passed by the additional principal judge, family court, Hamirpur dated September 22, 2018, observing, “truth must triumph is the hallmark of justice”. “This court has therefore clearly opined that proof based on a DNA test would be sufficient to dislodge a presumption under Section 112 of the Indian Evidence Act.”
The court pronounced this judgment on October 21, 2020.

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