No Routine DNA Test of a Child to Prove Adultery: Supreme Court Protects Child's Privacy and Legitimacy

The parties married in 2005 and their second son was born in 2013 (Nagarathna J., para 4). In 2017 the husband sought divorce under Section 13(1)(i) and (ia) of the Hindu Marriage Act, alleging an adulterous relationship he said he discovered in September 2016 (para 4). In November 2020 he applied for a DNA test of the second son to ascertain paternity (para 3). The Family Court, Pune allowed it on 12th August 2021 and the Bombay High Court confirmed it on 22nd November 2021 (para 3). His own pleading was only that physical relations ceased after the discovery (Ramasubramanian J., paras 24-25).

Section 112 makes birth during marriage conclusive proof of legitimacy unless non-access is shown, and the husband alleging illegitimacy bears that burden (Nagarathna J., paras 8, 11). A child's DNA test is not to be ordered routinely in matrimonial disputes, only where no other mode of proof exists and prima facie material dislodges the presumption, and not mechanically where paternity is merely collateral (para 12). Nandlal Wasudeo Badwaik did not help the husband, since a DNA report was already on record there (para 13). A court will not compel one party to assist the other (para 15). Genetic information is protected by the child's right to privacy, and children may not have their legitimacy questioned frivolously (paras 16-17). Under the Convention, there was no nexus between the test and the child's best interests (paras 20-21). The husband could prove adultery through call recordings and a diary, and pleaded no non-access (para 26). He had access to his wife, so Section 112 applied and Section 114(h) could not be used to sidestep it (Ramasubramanian J., paras 25, 32). A mother refusing the test to protect her child attracts no adverse inference of adultery (Ramasubramanian J., paras 28-29).