NEW DELHI: The Supreme Court on Wednesday held that a child born during a marriage can be subjected to a paternity test in a matrimonial dispute where a husband seeks divorce on the ground of alleged unchaste conduct of his wife and claims that he is not the child’s biological father.
A bench of Justices M M Sundresh and Prasanna B Varale rejected a woman’s plea challenging an order directing a DNA test of her child. She had argued that it was settled law that no person could be compelled to undergo a DNA test and that her husband’s divorce petition should be decided without such a test.
“If you are loyal, then why should you object to the test,” the bench observed.
The court upheld orders passed by a family court in Pune and the Bombay High Court directing the DNA test in divorce proceedings initiated by the husband. He had argued that the allegation of unchastity could be established only through a paternity test.
Husband had privately obtained DNA test
In the case, the husband had undergone a DNA test privately, which returned a negative result, indicating that he was not the biological father of the child.
Based on the report, he filed a divorce petition and sought a court-directed DNA test to establish his allegations.
The Supreme Court noted that the private DNA report constituted prima facie material supporting the husband’s claim.
“To prove the prima facie case, the husband has placed on record DNA test carried out by the laboratory at Hyderabad which concludes that the probability of him being the father… is zero,” the court said.
The bench said the report provided sufficient material for directing a DNA test.
It also noted that an “eminent need” for the test existed because the wife’s alleged unchastity was the primary ground cited by the husband in seeking divorce.
“A DNA test report would be of material bearing to prove the fact whether he is the father of son named in the petition,” the court observed.
The ruling comes against the backdrop of the legal presumption that a child born during a valid marriage is presumed to be legitimate, while also recognising that such a presumption does not necessarily prevent a court from ordering a DNA test when it is directly relevant to the matrimonial dispute.
