DNA Test Conclusive Evidence To Establish Infidelity : New Verdict By Supreme Court

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SUP PHOTO1On 15th October 2014, the Supreme Court of India reached consensus on the conclusiveness of the DNA test to be admitted as evidence on while deciding Special Leave Petition in Dipanwita Roy v. Ronobroto Roy. The Supreme Court opined that the Courts in India can direct for DNA test and admit it as lawful and technically ideal system to ascertain adultery when settling on divorce matters. Hence, the Court has diverged from the earlier legal documents that establish the legitimacy of a child born during the marital life when a divorce is preferred on the reason of faithlessness by the other spouse. The Court also iterated that the husband shall choose DNA test to prove his argument of infidelity when such a case comes before the Court. The test can be used as a weapon which is most genuine and lawful method by the wife to rebut the arguments which are raised by the husband. She can also prove that she always led true life and remained trustworthy to her husband.

The bench consisted of Justice Jagdish Singh Khehar and Justice R.K. Agrawal . The Court was dealing with an appeal filed by a person to validate an order issued by the lower Court directing DNA test of the child given birth by his wife. In this case the main issue involved was with regard to the divorce petition filed by the husband on the ground of adultery by wife. The Family Court considered the petition of the husband and issued direction to conduct DNA test.

The Court held that while conducting the test it would be difficult for the husband to ascertain and validate the arguments that are raised to prove adultery for which the divorce petition is sought for. The Courts are granting permission to carry out DNA test to resolve the paternity and also agree for technical test to conclude the matter of infidelity. Hence the Court shifted from earlier verdicts and emerged new principle of DNA.

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The verdict also required to equalize the privileges given to both husband and wife by granting permission to the partner to conduct the test at their own risk. In previous judgments the Apex Court has settled the issue regarding the legality of the child born during the legal marriage. But here, the rights of the child are being violated when trying to prove adultery on the other spouse. According to Section 112 as stated in the Indian Evidence Act, a child who is born at the time of marriage can be considered as legitimate and it remains a conclusive proof. The Court also considered Section 114 of the same Act where it gets the discretionary power of presumption on certain matters.

In the case of Kamti Devi v. Poshi Ram (AIR 2001 SC 2226), the Supreme Court opined that the conclusion reached in a DNA test is considered to be technically perfect. Even then such accuracy is not sufficient to get away from the finality as provided under Section 112 of the Indian Evidence Act. Here the Court explained the situation with the help of an example. Where the spouses had conception while living jointly and when the DNA test was conducted and the result shows that the father of the child is not the husband, the finality regarding the legitimacy of the child cannot be refuted.

When pronouncing the verdict, the Court also highlighted that when DNA test are permitted as in the instant case, without any confusion the matter relating to legal status would definitely be engaged by the way and that statement will also ascertain the elements of the provisions of the Hindu Marriage Act as well that provides for infidelity as a reason to get divorced.

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At this juncture it is pertinent to note the decision of the Supreme Court in 2009, where the Court pointed out that where if the proof of adultery being committed by wife that leads to complete evidence, but is remains inadequate to drive back the supposition and cannot rationalize the conclusion reached on illegitimacy where the husband was living with the wife and had access with that woman. In Nandlal Wasudeo Badwaik vs Lata Nandlal Badwaik and Another (2014) also the Supreme Court concluded that the result sought by conducting DNA test is correct and truthful. Thus, at present DNA test can be considered as conclusive evidence to prove infidelity.