NEW DELHI: The Supreme Court has said that DNA test to determine the paternity of a child, especially when the parents are in the midst of a divorce suit, could not be allowed by the judiciary on flimsy grounds as it had serious repercussions.
If a husband, who files a divorce suit against his estranged wife, did not question the legitimacy of their child at the trial court stage, he was barred from doing so in appeal before the High Court, said the apex court. For, a child born in a marriage was presumed to be legitimate, it added.
Allowing the appeal of the wife and setting aside a Madhya Pradesh High Court order directing DNA test on the child, a Bench comprising Justices Tarun Chatterjee and R M Lodha said, “It was not open to the HC at the appellate stage to direct DNA test to be performed on the child.”
The wife, alleging harassment at the matrimonial home, had gone to her parents house and gave birth to a child there. The husband, during the pendency of his appeal in the HC, had moved an application seeking DNA test on the child. The wife opposed it saying the husband had never questioned the paternity of the child at the trial court stage.
However, the HC allowed the DNA test saying, “Since the husband has made a prestige issue and it appears to this court that in case the DNA test confirms that the son is from the husband, then the family can be reunited.”
Frowning at the HC order, the SC Bench said, “When a child is born in a marriage, there is presumption of his legitimacy and the presumption of legitimacy largely depends on the presumed fact that the parties to a marriage have necessary access to each other when a divorce petition is filed and specially when the husband did not assert that the son was a consequence of illicit relationship (of the wife) with some third person.”
In the absence of any reason except on the ground that the husband had made a prestige issue about the paternity of the child, a direction for DNA test could not have been passed by the HC, said Justice Chatterjee writing the judgment for the Bench.