‘DNA test cannot be made routine’

Th Delhi high court has observed that the DNA test cannot be ordered to gather evidence on behalf of a party who has made bald allegations of infidelity against their spouse. The order was given when the court was hearing an application seeking direction for a DNA test.

The judgement came after a husband had sought the test and the court had allowed his application. Later, when the wife approached the court, the earlier order was set aside. The court has exhaustively approached the subject and laws surrounding it.

The division bench of the Delhi high court has held that strong presumption under Section 112 of the Indian Evidence Act of legitimacy of a child born during marriage can only be rebutted by “strong, clear, satisfying and conclusive” evidence of “non-access”.

The bench comprising of justices Gita Mittal and I. S. Mehta also observed that DNA test cannot be ordered to gather evidence on behalf of a party who has made a bald allegations of infidelity.

While observing the principles under which the test can be done, the court clearly stated that, “ the test can not be made routine”. The court viewed that the application of DNA test must consider both parties’ interests.

The order also stated that the test cannot be used to establish infidelity. The court observed: “What if there were no child from the alleged infidelity or the extra marital affair of the wife What about a case where the wife alleges infidelity against the husband, with or without there being a child from such relationship The husband (or the wife) has to stand on his own feet and establish the alleged infidelity as per law.”

From earlier precedents the court has observed: “The courts must be inclined towards upholding the legitimacy of the child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father.”