Wife's adulterous life no grounds for child to undergo paternity test: Bombay High Court

The Nagpur Bench of the Bombay High Court has held that if there are allegation against a wife that she lives an adulterous life, the said fact can be proved by any other evidence than calling upon the child from the marriage to undergo a paternity test.

A bench of Justice RM Joshi made this observation while allowing a petition made by a wife against the Family Court's decision to allow the husband's application of conducting DNA Profiling Test to decide legitimacy of their child.

Impugned order was passed by the Family Court in a petition filed by the husband seeking decree of divorce on the ground of adultery, cruelty and desertion from his wife.

Justice Joshi noted that Supreme Court has cautioned the Courts that only if the paternity test is eminently needed then such test can be directed to be conducted. 

"In case of a minor child, he/she is not capable of taking decision of agreeing to the test or refusal thereof. More particularly, when the parents of such child are fighting against each other and most of the times, the child is a tool, in such fight, the Court must become the custodian of rights of minor child", the high court went on to note.

The Nagpur bench further noted that there is more responsibility on the Court than to just decide the lis/disputed questions between parties and it is undoubtedly required to consider pros and cons before calling upon minor to undergo blood/DNA test.

In the facts of the instant case, high court noted that the allegation of the husband was that he was entitled for decree of divorce for the reason that his wife was living an adulterous life. The single judge bench went on to add, 

"A question arises as to whether, this is an eminent case for passing order of DNA test. The candid answer to the same would be emphatic no. The reason for that is, unless the respondent-husband disputes that he is not the father of the child and makes out a specific case of having no access to wife and rebuts presumption under Section 112 of the Indian Evidence Act, question of determining the paternity of the child does not arise".

High Court further noted that in none of the proceedings before the family court, the husband had even denied paternity of the child and ordered thus, "The Family Court, therefore, has clearly erred in facts as well as law while passing the order impugned. Hence, the petitioner has made out a case to cause interference in the order impugned."

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