TaxTMI 
TaxTMI 
2023 (2) TMI 1163
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....on-access, the law considers the husband's paternity to be conclusively established if they cohabited when the child was likely to have been conceived. By allowing rebuttal with proof, that the husband could not have been the biological father, the marital presumption was implicitly premised, in part, on a policy linking parenthood with biological reproduction and on an assumption about the probability of the husband's genetic contribution. The presumption protects social parentage over biological parentage. Scientific proof now makes it possible to know with virtual certainty whether a man is genetically related to a child. As a result, Courts are routinely confronted with husbands seeking to disavow their paternity based on newly acquired DNA evidence, notwithstanding them having long performed the social role of father to a child. The short question in the present appeal is as to how a Court can prevent the law's tidy assumptions linking paternity with matrimony, from collapsing, particularly when parties are routinely attempting to dislodge such presumptions by employing modern genetic profiling techniques. Factual Background: 3. The present controversy emerges....
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....the appellant and Kshitij Bafna. ii. That the respondent discovered that the appellant had been in an adulterous relationship with Kshitij Bafna, while he was using her phone on 14th September, 2016. That on being confronted about the same the appellant admitted to the adulterous relationship with Kshitij Bafna. iii. That the respondent, being unwilling to accept the truth as confirmed by the appellant, decided to further investigate the issue of Master "X's" paternity and hence, caused a DNA test to be conducted at DNA Labs India, a private laboratory. The DNA Test report dated 24th November, 2016 indicated as follows: "The alleged father lacks genetic markers that must be contributed to the child by the biological father. The probability of paternity is 0%". iv. That the respondent was certain that Master "X" was born as a result of the adulterous relationship of the appellant. However, in order to substantiate his contention as to the appellant's infidelity as a ground for divorce, it was necessary to conduct a DNA test which would reveal that the respondent was not the biological father of Master "X". v. That a DNA test is the most l....
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....gical father Master "X" has been excluded. That in view of Section 14 of the Family Courts Act, 1984 the said Report can be read as evidence. iii. Reliance was placed on the decision of this Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik, (2014) 2 SCC 576, to hold that Section 112 of the Evidence Act was enacted at a time when scientific advancement in the field of DNA test was not as sophisticated. That although Section 112 raises a presumption of conclusive proof on the satisfaction of the conditions enumerated therein, the same is rebuttable. That where the truth of a fact is known, there is no need or room for any presumption. Thus, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. iv. That the respondent had made out a prima-facie case justifying the Court's exercise of discretionary power to direct conducting DNA Test by collecting blood samples of the respondent and the minor child. v. That the respondent would be able to substantiate his allegations of adultery/infidelity on the part o....
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....to conduct the DNA Test was expressly and strongly laid down by the respondent. ii. As regards the question as to whether an order directing DNA test of the appellant's minor child would encroach on the legal or Constitutional rights of the appellant, the High Court held that fundamental rights guaranteed under Article 21 of the Constitution of India are always subject to reasonable restrictions. Reliance was placed on Sharda vs. Dharmpal, (2003) 4 SCC 493 to hold that a matrimonial court has the power to direct a person to undergo medical tests and such a direction would not amount to a violation of the personal liberty guaranteed under Article 21 of the Constitution of India. iii. That Section 112 of the Indian Evidence Act provides for the presumption of conclusive proof of legitimacy. However, such a presumption is rebuttable. One way of rebutting such presumption is by pleading and establishing a strong prima facie case like the one demonstrated by the respondent. iv. That a Court is required to be sensitive to the fact that but for the medical/DNA test, it would be impossible for the respondent to establish the assertions made in the pleadings. ....
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....sideration of the interest of the child. It was next contended that the rationale behind the Indian Law leaning towards legitimacy is that the DNA test would impinge on the right to privacy of a child and any issue as to legitimacy will have major societal repercussions on the innocent child. Further, balancing the interests of the child and the respondent does not justify passing a direction for conducting the DNA test of the child. 6.2. Sri Huzefa Ahmadi, learned senior counsel next submitted that the respondent had failed to establish any case demonstrating non-access at the relevant time, so as to dislodge the presumption under Section 112 of the Evidence Act and thus, no direction could have been passed to conduct a DNA test of the child. That the language of Section 112 of the Evidence Act and the decisions of this Court in Goutam Kundu, Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633 and Ashok Kumar vs. Raj Gupta, (2022) 1 SCC 20, would establish that a party seeking a direction to conduct DNA test is required to bring on record strong prima-facie evidence of nonaccess vis-a-vis the presumption under Section 112 of the Evide....
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....e relevant law, and therefore, the same do not call for interference by this Court. 7.1. Sri Kapil Sibal asserted that the instant appeal is an abuse of the process of law and is not maintainable either on law or based on the facts of the present case. That the present appeal has been filed with a view to mask the adulterous conduct of the appellant, in the guise of the child's welfare. 7.2. Reliance was placed on the decision of this Court in Uday Chand Dutt vs. Saibal Sen, (1987) Supp SCC 506 to contend that in the face of two concurrent findings of the Family Court and the High Court, such findings may not be interfered with by this Court. 7.3. Learned Senior Counsel appearing on behalf of the respondent referred to Section 41 of the Evidence Act and stated that a judgment in a matrimonial proceeding is a judgment in-rem and therefore, to arrive at a just and proper judgment in the pending Divorce Petition, any evidence to bring out the truth is germane to the matter and has to be permitted to be brought in and cannot be ignored. That the issue is one of a fair trial from the point of view of both the parties. 7.4. It was next submitted that Section 112 of the Eviden....
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.... the respective parties, and upon perusal of the record, the following points would arise for our consideration: i. Whether, the Family Court, Pune and the High Court of Judicature at Bombay, have rightly appreciated Section 112 of the Evidence Act in directing that a DNA test of Master "X" be conducted? ii. Whether, on non-compliance on the part of the appellant of the direction to subject Master "X" to DNA test, allegations of adultery as against her could be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114? iii. What order? Legal Scheme: 8. For an easy and immediate reference, the relevant provisions of the Evidence Act are extracted hereinunder: "4. 'Conclusive proof'.-When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. x x x 112. Birth during marriage, conclusive proof of legitimacy. -- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two....
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....mate. This presumption can be rebutted only by strong, clear and conclusive evidence to the contrary. Section 112 of the Evidence Act is based on the presumption of public morality and public policy vide Sham Lal vs. Sanjeev Kumar, (2009) 12 SCC 454. Since Section 112 creates a presumption of legitimacy that a child born during the subsistence of a marriage is deemed to be legitimate, a burden is cast on the person who questions the legitimacy of the child. 8.2. Further, "access" or "non-access" does not mean actual cohabitation but means the "existence" or "non-existence" of opportunities for sexual relationship. Section 112 refers to point of time of birth as the crucial aspect and not to the time of conception. The time of conception is relevant only to see whether the husband had or did not have access to the wife. Thus, birth during the continuance of marriage is "conclusive proof" of legitimacy unless "non-access" of the party who questions the paternity of the child at the time the child could have been begotten is proved by the said party. 8.3. It is necessary in this context to note what is "conclusive proof" with reference to the proof of the legitimacy of the child....
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....ld is born during the continuance of a valid marriage and not otherwise. "Access" or "non-access" must be in the context of sexual intercourse that is, in the sexual sense and therefore, in that narrow sense. Access may for instance, be impossible not only when the husband is away during the period when the child could have been begotten or owing to impotency or incompetency due to various reasons or the passage of time since the death of the husband. Thus, even though the husband may be cohabiting, there may be non-access between the husband and the wife. One of the instances of non-access despite co-habitation is the impotency of the husband. If the husband has had access, adultery on the wife's part will not justify a finding of illegitimacy. 8.6. Thus, "non-access" has to be proved as a fact in issue and the same could be established by direct and circumstantial evidence of an unambiguous character. Thus, there could be "non-access" between the husband and wife despite co-habitation. Conversely, even in the absence of actual co-habitation, there could be access. 8.7. Section 112 was enacted at a time when modern scientific tests such as DNA tests, as well as Ribonucle....
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....er.- If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations:- xxx (4) The Court may, if it sees fit, draw, from the witness's refusal to answer, the inference that the answer if given would be unfavourable." The use of the word expression "may" would imply that the Court has the discretion to draw such an inference and it not bound to do so. The Court is to exercise such discretion having regard to the facts of each independent case. 9.2. For the purpose of reaching one conclusion, the Court can rely on a factual presumption unless the presumption is disproved or dispelled or rebutted. However, Illustration (h) to Section 114 has given enough discretionary power to the Court to draw certain inferences from the facts. The presumption under the section is discretionary and not mandatory. The us....
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....egitimacy of a child should not be put to peril. 11. The question that has to be answered in this case, is in respect of the alleged infidelity of the Appellant-wife. The Respondent-husband has made clear and categorical assertions in the petition filed by him Under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the Appellantwife. It is in the process of substantiating his allegation of infidelity, that the Respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the Appellant-wife. The Respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the Appellant-wife's infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the Respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most l....
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....n under Section 112. He made clear and categorical assertions in the petition filed by him alleging infidelity. He even named the person who was the father of the male child born to the appellant-wife, and asserted that at the relevant time, he and his wife did not share a bed on any occasion. In that backdrop, this Court specifically recorded a finding that in the facts and circumstances of the said case, it would have been impossible to prove the allegations of adultery/infidelity in the absence of a DNA test. However, in the present case, no plea has been raised by the respondent-husband as to non-access in order to dislodge the presumption under Section 112 of the Evidence Act. Further, the respondent has specifically claimed that he is in possession of call recordings/transcripts, and the daily diary of the appellant, which would point to the infidelity of the appellant. Therefore, this is not a case where a DNA test would be the only possible way to ascertain the truth regarding the appellant's adultery. Hence, in the present case, there is insufficient material to dislodge the presumption under Section 112 of the Evidence Act and permit a DNA test of Master "X". Further, ....
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....arriage. The thrust of the submissions of Learned Senior Counsel Shri Kapil Sibal was that if the appellant herein does not agree to subject Master "X" to a DNA test, then, an adverse inference could be raised against her regarding her adulterous life. What is the nature of the adverse inference that could be raised against the appellant herein? The adverse inference is not with regard to Master "X" being a child born outside wedlock and therefore an illegitimate child. What was contended was that an adverse inference regarding adultery on the part of the appellant herein could be raised. We cannot accede to such an approach in the matter. The issue of paternity of Master "X" is alien to the issue of adultery on the part of the appellant herein. Master "X "being a legitimate child of the parties herein has nothing to do with the alleged adultery on the part of the appellant herein. Hence, the judgment of this Court in Dipanwita Roy is of no assistance to the respondent herein. The aforesaid case, turns on its own facts and cannot be relied upon as a precedent having regard to the facts of this case. Use of DNA profiling technology as a means to prove adultery: 11. With the ad....
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....e, as expressed under Section 112 of the Evidence Act. The consequence of the said presumption on the power of the Courts to direct blood test as a means to determine paternity in matrimonial disputes was discussed by this Court, and the following principles were culled out so as to guide the Courts in issuing such directions: "26. From the above discussion it emerges: (1) that courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) the court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) no one can be compelled to give sample of blood for analysis." ii. In Bhabani Prasad Jena, this Court emphasised that a direction to use DNA profiling technology to determine the p....
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....ment under appeal, blood sampling of the children was directed, who were not parties to the proceeding nor were their status required to be examined in the complaint of the respondent no.2. This raised doubt on their legitimacy of being borne to legally wedded parents and such directions, if carried out, have the potential of exposing them to inheritance related complication. Section 112 of the Evidence Act, also gives a protective cover from allegations of this nature. The said provision stipulates:- "Birth during marriage, conclusive proof of legitimacy.-The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." 8. In our opinion, the Trial Court as also the Revisional Court had completely ignored the said factor and proceeded as if the children were material objects who could be sent for forensic analysis. The other factor, ....
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....child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding. iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test. v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc. 13. Further, in Nandlal Wasudeo Badwaik, the facts of the case were that due to non-opposition of the counsel for the wife, this Court directed that the serological test be conducted. The report was brought on record, whic....
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....nature or designed for some ulterior motive, it would be justified in not according to such a prayer." (Emphasis by us) 15. It is trite that the burden is on a litigating party to prove his case by adducing evidence in support of his plea. The Court is not to compel one party to the dispute to assist the other contesting party, vide Ashok Kumar. Therefore, DNA tests are not to be directed on a routine basis, merely to enable a party to prove his case of adultery. The right of children not to have their legitimacy questioned frivolously in Courts of Law: 16. The default position in India is that for many reasons, parents are presumed to be the decision makers for their children, in so far as healthcare, consent for genetic testing etc. are concerned. Justifications for this position include that parents are free within very broad limits to decide how to bring up their children, parents are thought to be most likely to act in their child's best interests, children generally lack the capacity to make fully competent decisions so someone else must, and state intervention is rarely appropriate. Genetic information is broadly understood as shedding light on a person....
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....el, inhuman, and degrading treatment. In such circumstances the question becomes whether the interference with a child's integrity is lawful and non-arbitrary. 20. The Convention accommodates and protects parental rights with respect to the upbringing of their Children, vide Article 5. However, this deference to parental wishes is subject to the strict caveat that such rights are exercised for the purpose of providing guidance and assistance to a child. Thus, unless a parent can demonstrate on the basis of objective evidence that an interference with a child's bodily integrity is intended to benefit the health and development of a child, the interference will not be justified. If any interference with the right to privacy or bodily integrity of a child is to be justified, it must be established that there is objective evidence that establishes a nexus between the measure and aim; that there is no reasonably available alternative which would have minimized the interference with the child's right. Applying the said principles enumerated in the Convention, to the facts of the present case, we are unable to accept that conducting a DNA test of a child, as a means to prove adultery o....
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.... LJ, expressed their reservations against the opinion of Lord Denning, MR, regarding blood tests in proceedings other than in custodial jurisdiction. However, in the latter decision of B. (B.R.), it was held that a judge of the High Court can order a blood test on a paternity issue or indeed on any other issue, when doing so would be in the best interest of the child to do so. 22.2 This Court has consistently invoked the principle of best interest of child, particularly, in disputes concerning custody of children. 22.3. It is undeniable that a finding as to illegitimacy, if revealed in a DNA test, would, at the very least adversely affect the child psychologically. It can cause not only confusion in the mind of the child but a quest to find out who the real father is and a mixed feeling towards a person who may have nurtured the child but is not the biological father. Not knowing who one's father is creates a mental trauma in a child. One can imagine, if, after coming to know the identity of the biological father what greater trauma and stress would impact on a young mind. Proceedings which are in rem have a real impact on not only the child but also on the relationship be....
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....itimacy gets complex and is serious. A child should not be lost in its search for paternity. Precious childhood and youth cannot be lost in a quest to know about one's paternity. Therefore, the wholesome object of Section 112 of the Evidence Act which confers legitimacy on children born during the subsistence of a valid marriage, subject to the same being rebutted by cogent and strong evidence, is to be preserved. Children of today are citizens and the future of a nation. The confidence and happiness of a child who is showered with love and affection by both parents is totally distinct from that of a child who has no parents or has lost a parent and still worse, is that of a child whose paternity is in question without there being any cogent reason for the same. The plight of a child whose paternity and thus his legitimacy, is questioned would sink into a vortex of confusion which can be confounded if Courts are not cautious and responsible enough to exercise discretion in a most judicious and cautious manner. Further, questions surrounding paternity have a significant impact on the identity of a child. Routinely ordering DNA tests, particularly in cases where the issue of....
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....7) 1 SCC 624. 24. Questions as to illegitimacy of a child, are only incidental to the claim of dissolution of marriage on the ground of adultery or infidelity. Allowing DNA tests to be conducted on a routine basis, in order to prove adultery, would amount to redefinition of the maxim, "Pater est quem nuptiae demonstrant" which means, the father is he whom the nuptials point out. While dealing with allegations of adultery and infidelity, a request for a DNA test of the child, not only competes with the presumption under Section 112, but also jostles with the imperative of bodily autonomy. 25. Another aspect that needs to be considered in the instant case is whether, for a just decision in the divorce proceedings, a DNA test is eminently necessary. This is not a case where a DNA test is the only route to the truth regarding the adultery of the mother. If the paternity of the children is the issue in a proceeding, DNA test may be the only route to establish the truth. However, in our view, it is not so in the present case. The evidence of DNA test to rebut the conclusive presumption available under Section 112 of the Evidence Act, can be allowed only when there is compelling cir....
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....set aside. Bearing in mind the facts of the present case, the appeal is allowed with cost of Rs.1 Lakh payable by the respondent to the appellant. The same shall be paid before the Family Court within a period of one month from today. V. Ramasubramanian, J. 1. While I am entirely in agreement with the opinion wellcrafted by my learned sister Hon'ble Mrs. Justice B.V. Nagarathna, I thought that two aspects of the matter require little more emphasis. Hence a separate but concurring opinion. 2. As we have seen from the narration of facts given by my learned sister Hon'ble Mrs. Justice B.V. Nagarathna - • The marriage of the appellant with the respondent took place on 23.11.2005. • The first child was born on 21.12.2009. • The second child was born on 17.7.2013. • The respondent-husband claims to have found out the alleged adulterous conduct of the appellant, on 14.9.2016, (3 years after the birth of the second child) when he accidentally stumbled upon the Whatsapp messages in the mobile phone of the appellant. • Then the respondent privately had a DNA test conducted on the second child, in November 2016, from....
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....ither to presume or not to presume. If a Court refuses to presume the fact in question as proved, that is the end of the matter. But when the Court agrees to presume such fact, it is up to the other party to lead evidence to rebut the presumption. Wherever the Act uses the expression "shall presume", the Court has no option but to presume the fact, till such time it is rebutted. But wherever the Act uses the expression "conclusive proof", the Court cannot even allow evidence to be given for the purpose of disproving it. 7. The expression "shall presume" is used in the Evidence Act- • In Section 79 in relation to genuineness of certified copies of documents. • In Section 80 in relation to documents produced as record of evidence. • In Section 81 in relation to genuineness of Gazettes, newspapers, Acts of Parliament, etc. • In Section 81A in relation to genuineness of every electronic record purporting to be the Official Gazette. • In Section 82 in relation to documents admissible in England without proof of seal or signature. • In Section 83 in relation to accuracy of maps or plans made by the authority....
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....at one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. This is why Section 112 does not use the word "proved" or "disproved". Section 112 uses the words "unless it can be shown". 11. A combined reading of Section 4 and Section 112 would show that once the party questioning the legitimacy of the birth of a child shows that the parties to the marriage had no access to each other, then the benefit of Section 112 is not available to the party invoking Section 112. In other words, if a party to a marriage establishes that there was no access to the other party to the marriage, then the shield of conclusive proof becomes unavailable. If on the contrary, such a party is not able to prove that he had no access to the other party to the marriage, then the shield of Section 112 protects the other party to such an extent that it cannot be pierced by any amount of evidence in view of the prohibition contained in Section 4. 12. In contrast, Section 114 on which heavy reliance is placed by Shri Kapil Sibal, learned senior counsel for the respondent, deals only with facts which the Court "may presume". The existence of any fact wh....
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....reating an obligation is in the hands of the obligor, the obligation has been discharged. But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:- As to illustration (a)-A shop-keeper has in his bill a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business; As to illustration (b)-A, a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself; As to illustration (b)-A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable; As to illustration (c)-A, the drawer of a bill....
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....rds, while dealing with a situation where a presumption in terms of Illustration (h) under Section 114 is sought to be raised, the Court has to examine whether the refusal of the person to answer, is on account of the fear that the answer may produce an unfavourable result to him in relation to the matter in issue or due to the fear that such an answer might cause loss to him in a matter unconnected to it. 18 Keeping in mind the above scheme of Sections 4, 112 and 114, let us now test the main contention of Shri Kapil Sibal, learned senior counsel for the respondent-husband that the attempt of the respondent-husband is not so much to show that he did not father the second child but is only to show that the appellant was living in adultery and that what comes into play in this case is only Section 114 and not Section 112. The learned senior counsel submitted that the respondent-husband is even prepared to accept the second child as his own, irrespective of the outcome of the DNA test. According to the learned senior counsel for the respondent, it is open to the appellant-wife not to subject the child to DNA test, even if the Court orders the same, but if the appellant chooses not....
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....y with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent husband against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the court concerned by drawing a presumption of the nature contemplated in Section 114 of the Evidence Act, especially, in terms of Illustration (h) thereof. Section 114 as also Illustration (h), referred to above, are being extracted hereunder: "114.Court may presume existence of certain facts.-The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." "Illustration (h)-that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;" This course has been adopted to preserve the right of individual privacy to the ex....
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....nything 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 h....
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....he best interests of the child, the appellant-wife may be rewarded, but not punished with 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 byproduct 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 cho....