Delhi High Court rejects husband's plea to collect blood samples from wife and child to prove wife's adultery

The Delhi High Court on Wednesday rejected a plea by a man claiming to be suffering from azoospermia (a form of male infertility) who had sought blood samples from his wife and minor child to test the child’s paternity and support his allegations of adultery by the wife..A Division Bench of Justices Rajiv Shakdher and Amit Bansal rejected the plea after observing that the child was born while the couple was living together as husband and wife. Therefore, there is a presumption in favour of legitimacy of the child as per Section 112 of The Indian Evidence Act, 1872, the Court explained. “In this case, concededly, the disputants/couple lived together as husband and wife between 2008 and 2019. Given this undeniable fact, the presumption in favour of legitimacy under Section 112 of the Evidence Act springs forth qua the minor child. What also weighs against the appellant/husband is that he chose not to question the paternity of the child till November 2020, when an application was preferred to seek amendments in the divorce action instituted by him," the Court said. .The Bench observed that whether the wife had been involved in an adulterous relationship, as alleged by the husband, is an aspect that will have to be decided after trial.While making this allegation against his wife, the husband had claimed that he suffered from azoospermia, which is a medical term used to denote a condition where there are no sperms in a person's ejaculate (semen).The Court observed that there are many causes for azoospermia, some of which are treatable, while in other cases, it is possible to retrieve a live sperm, which can be used in assisted reproductive techniques such as IVF.Therefore, the Court opined that it was in the realm of possibility, despite the husband’s assertion to the contrary, that the child bears his paternity.“In our opinion, the appellant/husband cannot, by a sidewind, impact the interest of the child who is not a party to the proceedings. The Family Court would have to take into account the evidence that the parties may lead to arrive at a conclusion, as suggested by the appellant/husband, that the respondent/wife had sexual intercourse voluntarily with a person other than the appellant/husband. Whether or not the respondent/wife had had an adulterous relationship could be gone into without subjecting the child to a paternity test," the Court added. .The husband had approached the High Court after a family court rejected his application for a direction to the wife and minor child to give their blood samples.The husband had sought to conduct a paternity test with the blood samples, to establish the wife’s allegedly adulterous conduct and the use of the child as a "pawn."The husband had filed a petition for divorce on January 31, 2020 on grounds of cruelty. On November 3, 2020, he moved an application seeking an amendment to his divorce petition and sought to incorporate paragraphs that would establish that he was suffering from azoospermia. Hence, he argued that the child purportedly born from his wedlock with his estranged wife did not bear the imprint of his paternity.The initial amendment was allowed by the trial court subject to deposit of costs of ₹3000. Later, on January 30, 2023, the husband moved another application seeking directions that his wife and child should be asked to give their blood samples so that the minor child’s paternity could be ascertained.Family court rejected this application citing Section 112 of the Evidence Act..After considering the case, the High Court found no reason to interfere with the family court order and dismissed the husband's challenge to the said order..Advocate Ashish Negi appeared for the appellant-husband.None appeared for the wife..[Read Judgment]