Paragraph numbers below are the court’s original numbering, recovered from the source text.
22. As we have indicated elsewhere, if one of the parties to the marriage shows that he had no access to the other at the time when the child could have been begotten, then Section 112 itself does not get attracted. On the contrary, if the parties have had access to each other at the relevant point of time, the fate of the question relating to legitimacy is sealed.
23. We are not suggesting for a moment that Section 112 acts as a shield even for the alleged adulterous conduct on the part of the wife. All that we say is that anything that would destroy the legal effect of Section 112 cannot be used by the respondent, on the ground that the same is being done to achieve another result.
24. In the case on hand, the very pleading of the respondent in his petition for divorce before the Family Court is that the second child- Master “X” was born on 17.7.2013 and that the respondent came to know about the alleged adulterous behavior of the appellant herein, only on 14.9.2016. In paragraph 23 of his petition for divorce, the respondent pleaded as follows: “23. The Petitioner states that he has not condoned the adultery and the cruel behavior of Respondent No.1. The Petitioner has had no physical relations with Respondent No.1 after discovering her adulterous act. The Petitioner states that though the Petitioner and the respondent no.1 are living under the same roof, the Petitioner and Respondent no.1 have not shared the bedroom and have had no physical relations since the day the Petitioner discovered the adultery of Respondent No.1.”
25. The pleading of the respondent extracted above to the effect that after September 2016, he has had no physical relationship with the appellant-wife means that he has at least had access to the wife both at the time when the child was begotten and for a full period of three years even thereafter. Therefore, the conclusive proof under Section 112 has actually come into play in this case.
26. There is another fallacy in the argument of the respondent. It is the contention of the respondent that he is seeking an adverse inference to be drawn only as against the wife under Section 114(h), upon the refusal of the wife to subject the child to DNA test. But the stage at which the wife may refuse to subject the child to DNA, would arise only after the Court comes to the conclusion that a DNA test should be ordered. To put in simple terms, there are three stages in the process, namely, (i) consideration by the Court, of the question whether to order DNA test or not; (ii) passing an order directing DNA test, after such consideration; and (iii) the decision of the wife to comply or not, with the order so passed. The respondent should first cross the outer fence namely whether a DNA test can be ordered or not. It is only after he convinces the Court to order DNA test and successfully secures an order that he can move to the inner fence, regarding the willingness of the wife to abide by the order. It is only at that stage that the respondent can, if at all, seek refuge under Section 114(h).
27. But today, we are actually at the outer fence in this case, adjudicating as to whether DNA test can be ordered at all. Therefore, the respondent cannot jump to the inner fence by-passing the outer fence.
28. Coming to the presumption under Section 114(h), the contention of the respondent is obviously misplaced. An adverse inference, in law, can be drawn only against the person who refuses to answer a question. In the case on hand, the appellant has a dual role to play, namely, that of the respondent’s wife and that of Master “X’s” mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her. By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant-wife may be rewarded, but not punished with APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA [V. RAMASUBRAMANIAN, J.] an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant to a catch-22 situation.
29. Therefore, Section 114(h) has no application to a case where a mother refuses to make the child undergo DNA test. It is to be remembered that the object of conducting a DNA test on the child is primarily to show that the respondent was not the biological father. Once that fact is established, it merely follows as a corollary that the appellant was living in an adulterous relationship.
30. What comes out of a DNA test, as the main product, is the paternity of the child, which is subjected to a test. Incidentally, the adulterous conduct of the wife also stands established, as a by-product, through the very same process. To say that the wife should allow the child to undergo the DNA test, to enable the husband to have the benefit of both the product and the by-product or in the alternative the wife should allow the husband to have the benefit of the by-product by invoking Section 114, if she chooses not to subject the child to DNA test, is really to leave the choice between the devil and the deep sea to the wife.
31. In fact, in cases of this nature the Court must bear in mind that Section 114 uses only the word “may” and not the word “shall”. Therefore, the constraints articulated in the exposition to Illustration (h) under Section 114 may dissuade the Court not to presume at all.
32. Hence, we reject the contention of the respondent that what is sought to be invoked is only Section 114(h) and not Section 112. Whose rights, are to tilt the balance in the scales of justice?
33. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel for the appellant, the question as to whether a DNA test should be permitted on the child, is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the respondent-husband to prove by other evidence, the adulterous conduct of the wife, but the child’s right to identity should not be allowed to be sacrificed.
34. It is contended by Mr. Kapil Sibal, learned senior counsel for the respondent that after all the endeavour of every Court should be to find the truth and that every party to a litigation is entitled to produce the best evidence. Enabling the party to produce the best of evidence, is 4 (2012) 10 SCC 603 part and parcel of right to fair trial. Therefore, it is contended by learned senior counsel that the refusal to subject the child to DNA test would infringe upon the respondent’s right to fair trial. To buttress the contention that the right to privacy of an individual must yield to the right to fair trial of another, reliance is placed upon the decision of this Court in Sahara India Real Estate Corporation Limited & Ors. vs. Securities and Exchange Board of India & Anr.4.
35. Attractive as it may seem at first blush, the said argument does not carry any legal weight. The lis in these cases is between the parties to a marriage. The lis is not between one of the parties to the marriage and the child whose paternity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child.
36. Therefore, I concur wholeheartedly with my learned sister that the Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed. However, this shall not preclude the respondent-husband from leading any other evidence to establish the allegations made by him against the appellant in the petition for divorce. Divya Pandey Appeal allowed. (Assisted by : Shevali Monga, LCRA)