Suspicion of adultery by wife no ground to make child undergo DNA test to confirm paternity: Bombay High Court

Mumbai: Merely because a man suspects his wife of adultery does not become a ground to make their minor child undergo a DNA test to determine paternity, the Nagpur bench of the Bombay High Court has said.

Quashing a family court’s order directing a DNA test on a minor boy, Justice R M Joshi said that such a genetic examination is ordered only in exceptional cases.

In his July 1 order, a copy of which was made available on Wednesday, Justice Joshi said that merely because a man claims he is entitled to divorce on the ground of adultery does not make it an eminent case for passing an order directing a DNA test.

“A question arises as to whether this is an eminent case for passing the order of DNA test. The candid answer to the same would be an emphatic no,” the HC said.

The court said that if there is an allegation against the wife that she had committed adultery, then the same can be proved by any other evidence instead of calling upon the child to undergo a paternity test.

The order was passed in a petition filed by a man’s estranged wife and her 12-year-old son, challenging a February 2020 order passed by a family court directing the child to undergo a DNA profiling test to decide paternity.

The high court noted that the family court had erred in passing such an order and quashed it.

It was “absolutely obligatory” for the family court to consider the best interest of the child, Justice Joshi said in the order.

Referring to a Supreme Court order, the bench said that no one can be compelled to undergo a blood test, especially a minor child, when he or she is not even capable of taking a decision to agree or refuse the test.

When the parents of a child are fighting against each other, and most of the time, the child becomes a tool in the fight, the courts must become the custodian of the rights of the minor child, HC said.

“There would be more responsibility on the Court than to just decide the disputed questions between parties. The court is undoubtedly required to consider pros and cons before calling upon a minor child to undergo a blood/DNA test,” the court said.

The man had sought divorce from his wife on the grounds of adultery.

As per the plea, the couple got married in 2011, and when they separated in January 2013, the woman was three months pregnant.

The man sought a DNA test of the child to prove his allegation that his estranged wife had committed adultery.

The high court in its order noted that the man in his divorce plea has made allegations about the “adulterous” behaviour of his wife, but has never claimed that he was not the father of the child.