The Madhya Pradesh High Court recently upheld a family court decision to allow a husband’s plea to conduct a Deoxyribonucleic Acid (DNA) test to determine whether he is the father of a child born to his wife.

Justice Vivek Jain said that the husband does not want to know the child’s paternity to repudiate his liability to maintain the child, but only to prove his wife’s alleged adultery.

The judge noted that the Supreme Court in different cases has held that where no declaration is sought regarding illegitimacy of the child and the issue only relates to adultery of the wife, then, in appropriate cases, DNA test can be ordered.

“In the present case, sufficient pleadings are there in the divorce petition in Para-4 wherein the respondent husband has pleaded that he is in Indian Army and was called in October, 2015 by the wife who is Constable in MP Police. Within four days he was informed that by the wife that she is pregnant and she has conceived a child which could not have been known to the wife within four days of the husband returning from his duty in army. It is further pleaded that the child was born within 8 months of October, 2015 and there is clear pleading of non-access at the time when the child was conceived,” the High Court said.

The husband is serving in the Army and the wife is a constable with the Madhya Pradesh Police. The husband questioned the paternity of the child, claiming non-access to conjugal relations. He stated that he visited his wife only once every three to six months.

The wife, however, argued that directing a DNA test would violate their daughter’s right to privacy and cast unwarranted doubt on the child’s legitimacy.

The Court concluded that it was a fit case for a DNA test. It noted that the order was passed in connection with a third divorce petition and that the first divorce plea had been “scuttled” by the wife on the assurance of divorce by mutual consent.

“Then the application for mutual consent was filed in which the wife did not appear for second motion and now this third divorce petition has been filed which is also pending since the year 2021,” it added.

Therefore, the Court dismissed the wife’s appeal challenging the family court order. However, it observed that if she still refuses to give the DNA samples, then the family court would be at liberty to draw a presumption under Section 114(h) of the Indian Evidence Act or the corresponding provisions of Bharatiya Sakshya Adhiniyam against her.

Advocate Anu Pathak represented the wife.

Advocate Sheetal Tiwari represented the husband.