Author: Ruth Vaiphei, Assistant professor National Law University, Jodhpur
Smt. Neelam vs Ram Asrey (2020)
Case No. 104 of 2015
High Court of Judicature at Allahabad
(Decided on October 21, 2020)
Legal conundrum on paternity determination is recurrent phenomenon since courts either rely upon the provisions under section 112 of Indian Evidence Act,1872 or permit for a DNA test which may indicate third party intervention in procreation. In a recent Judgment, yet again an issue to rely on forensic input such as DNA arise in a divorce petition under Section 13 of the Hindu Marriage Act, 1955 filed by the husband on the ground of adultery, unprecedentedly seeking the wife, to undergo a DNA test, to establish her infidelity, and remarkably the court conceded that DNA test for paternity most authentic for a wife to establish that she had not been unfaithful, adulterous, or disloyal.[i] It is imperative to understand the gist of DNA for a vivid understanding as to why reliance on the same has always been sought. According to Richard Saferstein in his book “An Introduction to Forensic Science”, inside each of 60 trillion cells in the human body are strands of genetic material called chromosomes, arranged along the chromosomes, like beads on a thread, are nearly 25,000 genes. The gene is the fundamental unit of heredity. It instructs the body cells to make proteins that determine everything from hair colour to our susceptibility to diseases. Each gene is composed of Deoxyribonucleic Acid (DNA) specifically designed to carry out a single body function.[ii] Through DNA profiling scientists could distinguish between individuals of the same species using only samples of their DNA obtained from a person or sample of bodily tissue. DNA is found in every living cell of our bodies and can, therefore, be extracted from different body material.[iii]
Undeniably in the current era forensic inputs like serology and DNA tests, fingerprints, handwriting and signatures etc. have played a pivotal role in resolving not only a criminal case but also civil matters in the courtrooms. In India DNA has been resort in civil matter commonly for paternity determination. However, for various reasons remains a legal challenge since ages because disclosure of parentage is an essential component for self-determination, for knowing one’s genetic roots and for succession rights. Also, a dispute regarding a child’s paternity is one of the major causes of marital discord and ground for contesting divorce suits.
In the instance case, the marriage between Neelam and Ram Asrey took place on April 28, 2004, and three daughters were born out of the wedlock. However, the husband claims that since January 15, 2013, he has been living separately from the petitioner and there has been no resumption of cohabitation. Further, on June 25, 2014, they were divorce as per custom and he has been paying maintenance to her since then. A male child was born to the petitioner on January 26, 2016, in her paternal house. Therefore, a divorce petition under Section 13 of the Hindu Marriage Act, 1955 filed by the husband on the ground of adultery seeking the wife to undergo a D.N.A. test to establish her infidelity. Accordingly, an order was passed by learned Additional Principal Judge, Family Court directing the wife to undergo a DNA test.[iv] Hence, Petition under Article 227 of the Constitution of India has been filed challenging the order dated 22.09.2018 passed by learned Additional Principal Judge, Family Court.
The following issues were addressed in this case
- 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 that the wife, either to undergo a DNA test or refuse to undergo a DNA test.
- 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. In case, wife refuses to undergo a DNA test, then whether a presumption can be drawn by the Court against the wife.
- Whether the report of DNA test is just a piece of expert evidence or a conclusive or a substantive piece of evidence.
- Plea of presumption under Section 122 of the Evidence Act too was raised by the petitioner.
The High Court has observed that 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 learned family court has placed reliance on the judgment of Supreme Court in case of Dipanwita Roy Vs. Ronobroto Roy, 2015 (1) SCC D 39 (SC), wherein husband had filed a divorce petition on the ground of adultery. The adulterer was named, and then-husband had moved an application for D.N.A. Test of himself and a male child born to the wife. Family Court had dismissed the application. High Court reversed the orders of the family court. Supreme Court upheld the order of the High Court despite the pleading of the wife that the husband had access to her, whereas the husband had denied the same categorically.[v]
Reliance has also placed on the judgment of Supreme Court in case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, 2014 (2) SCC 576, wherein, Supreme Court observed that “the husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary.”[vi]The Apex Court had further observed that “we are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. ‘Truth must triumph’ is the hallmark of justice. The court 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.”[vii]
The High court observed that when the impugned order is tested on the touchstone of the legal pronouncement of the Supreme Court, the same could not be faulted with. Therefore, the Court did not find any illegality, infirmity, or arbitrariness to interfere with the impugned order dated 22.09.208 passed by the learned Additional Principal Judge, Family Court Hameepur.[viii]
Thus, the Petition failed and was dismissed.
From the aforesaid observation of the High Court, it is opined that though Section 112 of the Indian Evidence Act, 1872 postulates “Birth during the marriage, conclusive proof of legitimacy”. Where the presumption of legitimacy hinges upon the Latin Maxim ‘pater est quem muptice demonstrate’ meaning ‘he is the father whom the marriage indicates’.[ix] In a literal interpretation of Section 112, it presumes morality in sexual conduct of a married woman, consequently a child born within lawful wedlock become legitimate. In the eyes of paternity law, both socio-legal father (pater) and biological father (genitor) are the same people i.e., the husband but in real life, the pater and genitor may be different identities. However, this presumption seems to have been regarded now as obsolete when the court observed that “We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature”.[x] The result of a DNA test said to be scientifically accurate is now profoundly accepted even by the court that it seems to supersede Section 112 of the Indian Evidence Act, 1872. From the instance case, one can perceive the scope of section 112 pertaining to presumption of conclusive proof on the satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. However, While the truth or fact is known, from the court observation there is no need or room for any presumption. That means where there is evidence to the contrary, the presumption is rebuttable and must yield to proof.
Therefore, it is concluded that in a plethora of cases with the availability of advance science and technology which can proof the issue in question scientifically accurate, when there is a conflict between a conclusive proof envisaged under the law and a prove based on scientific advancement accepted by the world community to be correct, the court is more inclined to consider the latter over the former.
[i] Smt. Neelam vs Ram Asrey, 2020
[ii] RICHARD SAFERSTEIN, AN INTRODUCTION TO FORENSIC SCIENCE 396 (11 ed. 2015).
[iii] Ibid at 397
[iv] Ram Asrey vs. Smt. Neelam, 2018
[v] Supra note iv, para 8
[vi] Supra note iv, para 15
[vii] Nandlal wasudeo badwaik vs. Lata nandlal badwaik & ors, 2014 (2) SCC 576
[viii] Supra note i, para 11
[ix] Available at https://advocatespedia.com/SECTION_112_OF THE_INDIAN_EVIDENCE_ACT,1872 last access on 09/12/2020
[x] Supra note i, para 17