MUMBAI: A significant judgment by the Supreme Court, which ruled that a DNA test can be ordered by courts as a “legitimate and scientifically perfect” measure to establish infidelity of a wife, comes as a boost to men who suspect that their child from a marriage is really not theirs.
One such young father in Mumbai has been locked in a court battle for over two years now to prove that his son from his wife is actually not his.
“DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means 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. If the wife is right, she shall be proved to be so,” said a bench of Justice J S Khehar and Justice R K Agrawal while upholding an order passed last year by the Calcutta high court.
The SC ruling, which came on October 15 in a case emerging from Kolkata might now come to the rescue of not just the Mumbai father but similarly placed others who are caught in court battles over disproving paternity.
A sessions judge had recently ruled out as evidence, a paternity DNA test report that had “excluded” the Mumbai husband as the father of a child born to his wife. He already had a private DNA test report to establish he is not the father and with the SC ruling he is now hopeful that the courts will finally act on his case. In most cases, the plea is to allow a DNA test, in Mumbai, the man got his and his one-year-old son’s DNA tested in 2012 and it left him dismayed and with a court battle.
The Kolkata couple’s case in SC was over the alleged infidelity of the wife. The husband had even named the man who could be the alleged father of the son born to his wife and had applied in a family court for permission to do a DNA test as the “only valid proof“. The SC had agreed.
“In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings,” the court said. The SC had, however, said that if the wife declines to still do the DNA test the allegations made by the husband about her infidelity would have to be determined based on presumptions contemplated in Section 114 (h) of the Indian Evidence Act. The court can draw an adverse inference when a person refuses to give an answer, which law does not compel a person to give.