DNA test of a child can be used to prove fidelity in a marriage even if one of the parties of the marriage oppose such a test, the Supreme Court held on Wednesday, adding that resistance to such a test would result in adverse inferences against the resister.
A bench heading by Justice JS Khehar and Justice RK Agrawal passed the order while disposing of the appeal filed by Kolkata resident Dipanwita Roy against a December 6, 2012, order by the Calcutta high court which had directed her to undergo a DNA test to establish whether she had illegitimate son as alleged by her husband Ronobroto Roy.
The couple married on February 9, 2003, but according to the Ronobroto, Dipanwita had never stayed with him. Instead, he alleged, she had led an adulterous life with one Deven Shah. The two had a child together as well, he added, while seeking to divorce her on this ground.
“In our view, but for the DNA test, it would be impossible for the husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court was fully justified," the bench said.
Referring to previous judgments, the apex court said, “it was permissible for a court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties." It added the caveat that declining to comply with such an order would lead to the presumption of guilt of adultery on the spouse refusing.
"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 also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so," it said.
The apex court reasoned that the husband was not interested in the legitimacy or illegitimacy of the child, but rather wanted to establish his wife’s alleged infidelity.
“There can be no doubt, that the prayer made by the respondent for conducting a DNA test of the appellant's son as also of himself, was aimed at the alleged adulterous behaviour of the appellant,” Justice Khehar said.
However, the apex court refrained from directing the woman to undergo the DNA test leaving the choice to her own freedom as it involved individual privacy.