Supreme Court of India
APARNA AJINKYA FIRODIAversusAJINKYA ARUN FIRODIA
- Citation
- 2023 INSC 146
- Decided
- 20 February 2023
- Disposal
- Appeal(s) allowed
- Bench
- V RAMASUBRAMANIAN
Holding
In the absence of a proven plea of non‑access, the conclusive presumption of legitimacy under Section 112 cannot be rebutted and a DNA test cannot be ordered; consequently, no adverse inference under Section 114(h) may be drawn.
Summary
The husband filed for divorce on the ground of adultery and sought a DNA test of their son, born during the marriage, to establish paternity. The Family Court and the High Court ordered the DNA test, but the Supreme Court set aside those orders, holding that the conclusive presumption of legitimacy under Section 112 of the Evidence Act stands unless the husband can prove non‑access at the time of conception, which he did not. The Court further ruled that refusal to subject the child to a DNA test cannot attract an adverse inference under Section 114(h), as the presumption under Section 112 and the child’s right to privacy outweigh the husband’s evidentiary request. The appeal was allowed, and the orders of the lower courts were vacated.
Issues considered
- Whether a court may direct DNA testing of a child born during a valid marriage to prove paternity or adultery without a plea of non‑access.
- Whether refusal to undergo a DNA test can give rise to an adverse inference under Illustration (h) of Section 114 of the Evidence Act.
- The interplay between Sections 112 and 114 of the Evidence Act in matrimonial disputes.
- Whether the child’s right to privacy and best interests outweigh the husband’s right to a fair trial and evidentiary proof.
- Whether DNA testing should be ordered routinely in divorce proceedings involving allegations of adultery.
Legislation cited
- Constitution of Indias. Article 21
- Family Courts Act, 1984s. 14
- Hindu Marriage Act, 1955s. 13(1)(i), s. 13(1)(ia)
- Indian Evidence Act, 1872s. 112, s. 114, s. 4
Subjects
DNA testingpaternitylegitimacySection 112Section 114right to privacychild rightsadulteryfamily lawevidentiary presumptionbest interests of the child
Judgment
680 [2023]
SUPREME COURT 4 S.C.R. 680
REPORTS [2023] 4 S.C.R.
A APARNA AJINKYA FIRODIA
v.
AJINKYA ARUN FIRODIA
(Civil Appeal No.1308 of 2023)
B FEBRUARY 20, 2023
[V. RAMASUBRAMANIAN AND B.V. NAGARATHNA, JJ.]
Evidence Act, 1872 – s.112 – Birth during marriage, conclusive
proof of legitimacy – DNA test of minor child – Circumstances under
which may be directed – Principles enumerated.
C
Constitution of India – Right to privacy – DNA testing of
children – Held: Children have the right not to have their legitimacy
questioned frivolously before a Court of Law – This is an essential
attribute of the right to privacy.
D Evidence Act, 1872 – s.112 – Presumption u/s.112 – Absence
of plea of “non-access” to dislodge such presumption – Effect of –
Respondent-husband filed petition for divorce on the ground of
adultery against appellant-wife – Sought direction to subject the
son to DNA testing – Granted – Correctness of – Held: Once a
marriage is held to be valid, there is a strong presumption as to the
E children born from that wedlock as being legitimate – This
presumption can be rebutted only by strong, clear and conclusive
evidence to the contrary – The conclusive presumption of paternity
of a child born during the subsistence of a valid marriage is that
the child is that of the husband and it cannot be rebutted by a mere
F DNA test report – What is necessary to rebut is the proof of non-
access at the time when the child could have been begotten, that is,
at the time of its conception – However, in the present case, no plea
was raised by the husband as to non-access in order to dislodge
the presumption u/s.112 – Therefore, no prima facie case made out
by the respondent to justify a direction to conduct a DNA test on the
G son – Also, the respondent specifically claimed that he is in
possession of call recordings/transcripts, and the daily diary of the
appellant pointing to her infidelity 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 – Impugned judgment of the High
H Court and the order of the Family Court set aside –
680
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 681
[Per V. Ramasubramanian, J. (Concurring)] – The question as to the A
permission of DNA test 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 the
adulterous conduct of the wife by other evidence but, the child’s
B
right to identity should not be allowed to be sacrificed.
Evidence Act, 1872 – ss.112, 114 illustration (h) – Whether
an adverse presumption can be drawn under illustration (h) to s.114,
as to the wife’s adulterous conduct if she refuses to comply with a
direction for the child to undergo a DNA test – Respondent-husband
claimed that he found out the alleged adulterous conduct of the C
appellant-wife 3 years after the birth of the second son, filed petition
for divorce on the ground of adultery – Sought direction to subject
the second son to DNA testing, granted – Challenged by appellant
– Relying on Dipanwita Roy case, respondent contended that he is
not questioning the legitimacy of the child, but alleging adultery D
against the appellant and therefore, on her refusal to subject the
child to DNA test, a presumption u/s.114(h) can be drawn against
her – Held: The presumption under the section is discretionary and
not mandatory – Further, the facts in Dipanwita Roy were so
compelling, so as to justify a direction to conduct a DNA test as the
husband therein had taken a specific plea of non-access, unlike in E
the present case – In the instant case, there is no dispute about the
paternity of the son as admittedly he was born during the continuous
cohabitation of the parties and thus during the subsistence of a
valid marriage– On facts, no adverse inference can be drawn as
against the appellant u/s.114 on her refusal to subject her son to a
DNA test – Allegation of adultery has to be proved by the respondent F
de hors the issue of paternity of the son – [Per V. Ramasubramanian,
J. (Concurring)] – s.114 has nothing to do with, nor is in connection
with conclusive proof of legitimacy dealt with by s.112 – Both s.112
and s.114 fall under different compartments – s.114(h) has no
application to a case where a mother refuses to make the child G
undergo DNA test – Furthermore, on facts, respondent 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 u/s.112 has actually come into play in this case – Contention
of the respondent that what is sought to be invoked is only s.114(h)
and not s.112 is rejected. H
682 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Evidence Act, 1872 – s.112 – Question of legitimacy of the
child, burden of proof – Held: Since s.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.
B Evidence Act, 1872 – s.112 – Principle underlying – “access”,
“non-access” – Meaning – Held: Principle underlying s.112 is to
prevent an unwarranted enquiry as to the paternity of the child
whose parents, at the relevant time had “access” to each other –
“access” or “non-access” does not mean actual co-habitation but
means the “existence” or “non-existence” of opportunities for sexual
C relationship – s.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 – Operation of the conclusive presumption can be avoided
by proving non-access at the relevant time.
D International Law – International Conventions/Treaties– The
Convention on Rights of Child – Best interests of a child – Rights to
Privacy, Autonomy and Identity of Children – Discussed.
Evidence Act, 1872 – s.112 – Object of – Held: A child should
not be lost in its search for paternity – Precious childhood and
E 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 – A finding as to illegitimacy,
F if revealed in a DNA test, effect on the child psychologically,
discussed.
Evidence Act, 1872 – ss.4, 112 – Held: A combined reading
of ss.4 and 112 would show that once the party questioning the
legitimacy of the birth of a child shows that the parties to the marriage
G had no access to each other, then the benefit of s.112 is not available
to the party invoking s.112 – However, if such a party is not able to
prove that he had no access to the other party to the marriage, then
the shield of s.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 s.4.
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 683
Words & Phrases: A
“may presume”, “shall presume” and “conclusive proof” –
Discussed – Evidence Act, 1872 – ss.4, 112 and 114.
“inference”, “adverse inference” – Meaning of – Discussed.
Maxims – Pater est quem nuptiae demonstrant – Held: Questions B
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 aforesaid maxim,
which means, the father is he whom the nuptials point out.
C
Allowing the appeal, the Court
HELD: 1. The principle underlying Section 112 is to
prevent an unwarranted enquiry as to the paternity of the child
whose parents, at the relevant time had “access” to each other.
In other words, once a marriage is held to be valid, there is a D
strong presumption as to the children born from that wedlock as
being legitimate. 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. Since Section 112 creates a presumption of
legitimacy that a child born during the subsistence of a marriage E
is deemed to be legitimate, a burden is cast on the person who
questions the legitimacy of the child. 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 F
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 G
said party. A conjoint reading of Section 112 of the Evidence Act,
with the definition of “conclusive proof” under Section 4 thereof,
makes it amply clear that a child proved to be born during a valid
H
684 SUPREME COURT REPORTS [2023] 4 S.C.R.
A marriage should be deemed to be a legitimate child except where
it is shown that the parties to the marriage had no access to each
other at any time when the child could have been begotten or
within 280 days after the dissolution of the marriage and the
mother remains unmarried, that fact is the conclusive proof that
the child is the legitimate son of the man. Operation of the
B
conclusive presumption can be avoided by proving non-access
at the relevant time. The latter part of Section 112 of the Evidence
Act indicates that if a person is able to establish that the parties
to the marriage had no access to each other at any time when the
child could have been begotten, the legitimacy of such child can
C be denied. That is, it must be proved by strong and cogent
evidence that access between them was impossible on account
of serious illness or impotency or that there was no chance of
sexual relationship between the parties during the period when
the child must have been begotten. Thus, unless the absence of
access is established, the presumption of legitimacy cannot be
D
displaced. Thus, where the husband and wife have co-habited
together, and no impotency is proved, the child born from their
wedlock is conclusively presumed to be legitimate, even if the
wife is shown to have been, at the same time, guilty of infidelity.
The fact that a woman is living in adultery would not by itself be
E sufficient to repel the conclusive presumption in favour of the
legitimacy of a child. Therefore, shreds of evidence to the effect
that the husband did not have intercourse with the wife at the
period of conception, can only point to the illegitimacy of a child
born in wedlock, but it would not uproot the presumption of
legitimacy under Section 112. The presumption under Section
F
112 can be drawn only if the child 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
G 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
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 685
husband has had access, adultery on the wife’s part will not justify A
a finding of illegitimacy. 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-
B
habitation, there could be access. Section 112 was enacted at a
time when modern scientific tests such as DNA tests, as well as
Ribonucleic acid tests (‘RNA’, for short), were not in
contemplation of the legislature. However, even the result of a
genuine DNA test cannot escape from the conclusiveness of the
presumption under Section 112 of the Evidence Act. If a husband C
and wife were living together during the time of conception but
the DNA test reveals that the child was not born to the husband,
the conclusiveness in law would remain irrebuttable. What would
be proved, is adultery on the part of the wife, however, the
legitimacy of the child would still be conclusive in law. In other
D
words, the conclusive presumption of paternity of a child born
during the subsistence of a valid marriage is that the child is that
of the husband and it cannot be rebutted by a mere DNA test
report. What is necessary to rebut is the proof of non-access at
the time when the child could have been begotten, that is, at the
time of its conception. [Paras 8.1-8.7][704-D-G; 705-B-H; 706- E
A-E]
Sham Lal vs. Sanjeev Kumar, (2009) 12 SCC 454 :
[2009] 5 SCR 1049; Kamti Devi vs. Poshi Ram, (2001)
5 SCC 311 : [2001] 3 SCR 729 – relied on.
2.1 For the purpose of reaching one conclusion, the Court F
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 use of the G
phrase “may presume” in the said provision indicated that that
the Courts of Justice are to use their own sense and experience
in judging the effect of particular facts, and in determining whether
a presumption is to be drawn therefrom. Presumptions are
established on the basis of facts, and the Court enjoys the
discretionary power, either to presume a fact or not. The facts in H
686 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Dipanwita Roy were so compelling, so as to justify a direction to
conduct a DNA test. In the said case, the husband had taken a
specific plea of non-access. Further, the Court accepted that a
DNA test would be the only manner in which the case of adultery
could be proved. Having regard to the compelling need for a
DNA test in the said case, in order to establish the truth, this
B Court directed that if the appellant-wife therein refused to comply
with the direction of the Court regarding DNA test, the allegations
of adultery as against her would be determined by drawing an
adverse inference as contemplated under Illustration (h) of
Section 114 of the Evidence Act. However, such an observation
C made in the said case cannot be regarded as a precedent which
can be applied to all cases in a strait jacket manner wherein the
wife refuses to comply with the direction of the Court regarding
DNA test. Facts of the present case neither warrant a direction
to conduct a DNA test of Master ‘X’, nor do they justify drawing
an adverse inference as against the appellant-wife, under Section
D 114 of the Evidence Act, on her refusal to subject her son to a
DNA test. Inferences, whether adverse or otherwise, are to be
drawn by the Court, on consideration of facts and circumstances
of each individual cases. Hence, the judgment of this Court in
Dipanwita Roy is to be read in the aforesaid context. In the instant
case, there is no dispute about the paternity of Master ‘X’ as
E
even during the course of arguments it was admitted that Master
‘X’ was born during the continuous cohabitation of the parties
and thus during the subsistence of a valid marriage. 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
F 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.[Paras 9.2, 10.1][707-F-H; 710-H; 711-A; 710-F-G; 711-
B, E-F, H; 712-A]
G Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 :
[2014] 11 SCR 553 – distinguished.
Black’s Law Dictionary, 9th Edition – referred to.
2.2 The following principles could be culled out as to the
circumstances under which a DNA test of a minor child may be
H directed to be conducted: i. That a DNA test of a minor child is
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 687
not to be ordered routinely, in matrimonial disputes. Proof by A
way of DNA profiling is to be directed in matrimonial disputes
involving allegations of infidelity, only in matters where there is
no other mode of proving such assertions. ii. DNA tests of children
born during the subsistence of a valid marriage may be directed,
only when there is sufficient prima-facie material to dislodge the
B
presumption under Section 112 of the Evidence Act. Further, if
no plea has been raised as to non-access, in order to rebut the
presumption under Section 112 of the Evidence Act, a DNA test
may not be directed. iii. A Court would not be justified in
mechanically directing a DNA test of a child, in a case where the
paternity of a child is not directly in issue, but is merely collateral C
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
D
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 E
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. [Para 12][716-D-H; 717-A-C]
3. Children have the right not to have their legitimacy
questioned frivolously before a Court of Law. This is an essential F
attribute of the right to privacy. Courts are therefore required to
acknowledge that children are not to be regarded like material
objects, and be subjected to forensic/DNA testing, particularly
when they are not parties to the divorce proceeding. [Para
17][718-H; 719-A]
G
4. The concept of privacy for a child may not be equivalent
to that of an adult. However, the evolving capacity of children
has been recognised and the Convention acknowledges the
control that individuals, including children, have over their own
personal boundaries and the means by which they define who
H
688 SUPREME COURT REPORTS [2023] 4 S.C.R.
A they are in relation to other people. Children are not to be
deprived of this entitlement to influence and understand their
sense of self simply by virtue of being children. [Para 21][720-D]
5. A parent may, in the best interests of the child, choose
not to subject a child to a DNA test. It is also, antithetical to the
B fundamentals of the right to privacy to require a person to
disclose, in the course of proceedings in rem, the medical
procedures resorted to in order to conceive. The reasons for the
parent’s refusal may be several, and hence, it is not prudent to
draw an adverse inference under Section 114 of the Evidence
Act, in every case where a parent refuses to subject the child to
C a DNA test. [Para 22.3][723-D-E]
6. 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
D the maxim, “Pater est quemnuptiae 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. [Para
E 24][724-B-C]
Dukhtar Jahan vs. Mohammed Farooq, (1987) 1 SCC
624 : [1987] 1 SCR 1086 – relied on.
7. The case of the Respondent-husband is that if a DNA
test is allowed and the same reveals that he is not the biological
F father of ‘X’, as a corollary, it would be proved that the Appellant-
wife committed adultery. This Court does not find favour with
the approach suggested by the Respondent-husband to prove
adultery, for the following reasons: i. It is not in dispute that
Master ‘X’, the son stated to be born to the Appellant-wife from
G the wedlock, was born in the year 2013. DNA testing, cannot be
used as a short cut to establish infidelity that might have occurred
over a decade ago or subsequently after the birth of Master ‘X’.
ii. In the circumstances of the present case, a DNA test would
not be the only way in which the truth of the matter can be
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 689
established. The respondent-husband has categorically claimed A
that he is in possession of call recordings/transcripts and the daily
diary of the appellant, which may be summoned in accordance
with law to prove the infidelity of the appellant. Therefore, it
seems that the respondent is in a position to attempt to make
out a case based on such evidence, as to adultery/infidelity on
B
the part of the appellant. iii. No plea has been raised by the
respondent-husband herein as to non-access in order to dislodge
the presumption under Section 112 of the Evidence Act.
Therefore, no prima-facie case has been made out by the
respondent which would justify a direction to conduct a DNA test
of Master ‘X’. iv. No adverse inference can be raised in the instant C
case regarding the legitimacy or paternity of Master ‘X’ vis-à-vis
the appellant herein, on her declining to subject Master ‘X’ to a
paternity test. Further, on the appellant declining to subject
Master ‘X’ to a paternity test, no adverse inference can be drawn
as regards the alleged adultery on the part of the appellant herein
can be raised. The allegation of adultery has to be proved by the D
respondent herein de hors the issue of paternity of Master ‘X’.
[Para 26][724-F-H; 725-A-D]
Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik,
(2014) 2 SCC 576 : [2014] 1 SCR 120 – distinguished.
E
Sharda vs. Dharmpal, (2003) 4 SCC 493 : [2003] 3
SCR 106; Goutam Kundu vs. State of West Bengal,
(1993) 3 SCC 418 : [1993] 3 SCR 917; Goutam Kundu,
Bhabani Prasad Jena vs. Convenor Secretary, Orissa
State Commission for Women, (2010) 8 SCC 633 : [2010]
9 SCR 457; Inayath Ali vs. State of Telangana, MANU/ F
SC/1538/2022; Ashok Kumar vs. Raj Gupta, (2022) 1
SCC 20 – relied on.
Perumal Nadar (dead) by Lrs. vs. Ponnuswami, (1970)
1 SCC 605 : [1971] 1 SCR 49; Uday Chand Dutt vs.
Saibal Sen, (1987) Supp SCC 506 – referred to. G
Re L., (1968) 1 All ER 20; B. (B.R.) vs. B.(J.), (1968) 2
All ER 1023 – referred to.
Sarkar on Law of Evidence, 20th Edition; Rayden and
Jackson on Divorce and Family Matters (1983) Vol. I,
at Pg. 1054 – referred to. H
690 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Per V. RAMASUBRAMANIAN, J. (Concurring)
1.1 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
B 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. Section 112 deals with something where
the existence of a fact is taken to be conclusive proof, without
any possibility for the disputing party to lead evidence for
disproving the same. The only escape route, available for a person
C to deprive another person of the benefit of Section 112, is to
show that the parties to the marriage did not have access to each
other at the time when the child could have been begotten. Section
114 has nothing to do with, nor is in connection with conclusive
proof of legitimacy dealt with by Section 112. Both Section 112
D and Section 114 fall under different compartments. The word
“presumption” itself is not used in Section 112. The expression
used in Section 112 is “conclusive proof”. Therefore, by virtue of
Section 4, no evidence shall be allowed to be given for the purpose
of disproving it. If one of the parties to the marriage shows that
he had no access to the other at the time when the child could
E 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. [Paras 17, 21 and 22][732-E; 735-A-D]
1.2 In the case on hand, the very pleading of the respondent
F 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. The pleading of the
respondent to the effect that after September 2016, he has had
G 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. [Paras 24, 25][735-F; 736-A-B]
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 691
1.3 The stage at which the wife may refuse to subject the A
child to DNA, would arise only after the Court comes to the
conclusion that a DNA test should be ordered. [Para 26][736-C]
1.4 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 B
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 C
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 an adverse inference. By
taking recourse to Section 114(h), the respondent cannot throw D
the appellant to a catch-22 situation. Therefore, Section 114(h)
has no application to a case where a mother refuses to make the
child undergo DNA test. 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. E
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. Hence, the contention of the respondent that what
is sought to be invoked is only Section 114(h) and not Section F
112 is rejected. [Paras 28-32][736-F-H; 737-A-E]
2. 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 G
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.
[Para 33][737-F-G]
H
692 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365 :
[2014] 11 SCR 553; Sharda vs. Dharmpal (2003) 4
SCC 493 : [2003] 3 SCR 106; Sahara India Real Estate
Corporation Limited & Ors. vs. Securities and Exchange
Board of India & Anr. (2012) 10 SCC 603 : [2012] 12
SCR 256 – referred to.
B
Case Law Reference
[2014] 1 SCR 120 distinguished Para 4.5 (iii)
[2003] 3 SCR 106 relied on Para 4.7 (ii)
C [1993] 3 SCR 917 relied on Para 6
[2010] 9 SCR 457 relied on Para 6.2
[1971] 1 SCR 49 referred to Para 6.2
[2014] 11 SCR 553 distinguished Para 7.4
D
[2009] 5 SCR 1049 relied on Para 8.1
[2001] 3 SCR 729 relied on Para 8.7
[1987] 1 SCR 1086 relied on Para 23
E In the Judgment of V. Ramasubramanian, J.
[2014] 11 SCR 553 referred to Para 19
[2003] 3 SCR 106 referred to Para 20
[2012] 12 SCR 256 referred to Para 34
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1308
of 2023.
From the Judgment and Order dated 22.11.2021 of the High Court
of Judicature at Bombay in CWP No.7077 of 2021.
G Huzefa Ahmadi, Sr. Adv., Sanyat Lodha, Ms. Aakashi Lodha,
Ravi Raghunath, Sanjana, Advs. for the Appellant.
Kapil Sibal, Sr. Adv., Rohan Rajadaksha, Ms. Percis Ankleshwari,
Shlok Chandra, Vikrant Pachnanda, Ms. Aparajita Jamwal, Rishabh
Parikh, Anupam Sambhus, Ms. Arunima Kumari, Mukul Katyal, Keshav
H Garg, Advs. for the Respondent.
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 693
The Judgments of the Court were delivered by A
NAGARATHNA, J.
Leave granted.
2. Indian Law has proceeded on the assumption that parents are
persons who beget a child or who assume the legal obligations of B
parenthood through formal adoption of child. Under the Indian legal
spectrum, a husband is strongly presumed to be the father of a child
born to his wife. Thus, there is a strong presumption regarding the
paternity of a child. This presumption can be overcome only by evidence
precluding any procreative role of the husband, such as by showing that
the husband and wife had no access to each other at the relevant time C
of possible conception. In the absence of proof of non-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 D
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 E
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 F
employing modern genetic profiling techniques.
Factual Background:
3. The present controversy emerges from an application (Exhibit
84/B) filed by the respondent-husband on 9th November, 2020 before
the Principal Judge Family Court, Pune, praying for a direction to subject G
Master “X”, the second child born to the appellant-wife, during the
subsistence of her marriage with the respondent, to deoxyribonucleic
acid test (“DNA test” for short), with a view to ascertain his paternity.
The said application was filed by the respondent-husband in a petition
for divorce filed by him under Sections 13(1)(i) and (ia) of the Hindu
H
694 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Marriage Act, 1955, being Petition No. P.A. 639 of 2017. The same was
allowed by the Family Court, Pune by an order dated 12th August, 2021
and confirmed by the High Court of Judicature at Bombay by way of
the impugned judgment dated 22nd November, 2021 in Civil Writ Petition
No.7077 of 2021.
B 4. Succinctly stated, the facts leading to the present appeal are as
follows:
4.1. The appellant and the respondent got married as per Hindu
rites and rituals at Pune, on 23rd November, 2005. Their first child, Master
“Y”, was born on 21st December, 2009. During the subsistence of their
C marriage, a second son, namely, Master “X”, was born on 17th July,
2013.
4.2. On 1st June, 2017, the respondent-husband, filed a petition for
divorce under Sections 13(1)(i) and (ia) of the Hindu Marriage Act,
1955 being Petition No.P.A. 639 of 2017 and a petition seeking custody
D of their two children, being P.D. No. 17 of 2017 against the appellant-
wife, before the Family Court, Pune. In the petition for divorce, the
respondent, inter-alia, alleged that the appellant-wife was in an
adulterous relationship with one Kshitij Bafna, and the respondent
discovered the same on 14th September, 2016 when he found that certain
intimate messages had been exchanged between the appellant and Kshitij
E Bafna.
4.3. On 9th November, 2020, the respondent filed an application,
being application 84/B, before the Family Court, Pune seeking a direction
to subject Master “X”, the second child born to the appellant-wife, during
the subsistence of her marriage with the respondent to DNA testing,
F with a view to ascertain the child’s paternity. The contents of the said
application may be summarised as under:
i. That Master “X”, the second son born to the appellant-
wife, during the subsistence of her marriage with the
respondent, was born out of an adulterous relationship
G between 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
H adulterous relationship with Kshitij Bafna.
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 695
[B. V. NAGARATHNA, J.]
iii. That the respondent, being unwilling to accept the truth as A
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:
B
“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. C
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 legitimate and scientifically D
perfect means, that the respondent could use to establish
the assertion of infidelity on part of the appellant. That in
the absence thereof it would be impossible for the
respondent to conclusively establish the assertions made
by him in the pleadings.
E
vi. That the respondent had access to telephonic conversations
between him and Kshitij Bafna, wherein Kshitij Bafna had
expressed his anger at the respondent for intimating his wife
i.e., the wife of Mr. Bafna, of his illicit relationship with the
appellant. That Kshitij Bafna when confronted about the
paternity of Master “X”, did not deny that the child was F
born to him and the appellant. That the appellant was in the
habit of maintaining a daily diary wherein she had penned
her thoughts as to her adulterous relationship. Having regard
to the sensitive nature of the conversation and the contents
of the diary, the respondent sought for the leave of the Family G
Court to produce the recording, the diary and other
evidences, if necessary, at the time of final hearing of the
divorce proceedings.
4.4. The appellant filed an affidavit in reply, opposing the application
filed by the respondent seeking a direction to conduct DNA test of Master
H
696 SUPREME COURT REPORTS [2023] 4 S.C.R.
A “X”, inter-alia, contending that the respondent had not made out a prima-
facie case requiring the Court to exercise its discretion to direct DNA
test to be conducted as prayed for.
4.5. By an order dated 12th August, 2021, the Family Court, Pune,
allowed the application filed by the respondent seeking DNA test of
B Master “X” and further observed that in the event that the appellant
fails to comply with the directions of the Court, the allegations of adultery
as against her would be determined by drawing an adverse inference as
contemplated under Illustration (h) of Section 114 of the Indian Evidence
Act, 1872 (hereinafter “Evidence Act” for the sake of brevity). The
salient findings of the Family Court may be encapsulated as under:
C
i. That the respondent had filed the application seeking direction
to conduct DNA test of Master “X”, only with a view to
establish adultery on the part of the appellant and not to
disparage the paternity of the minor child.
ii. On perusal of the DNA Test Report issued by DNA Labs
D
India dated 24 th November, 2016, the Family Court
concluded that the possibility of the respondent being the
biological 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.
E 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
F 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
G 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
H the respondent and the minor child.
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 697
[B. V. NAGARATHNA, J.]
v. That the respondent would be able to substantiate his A
allegations of adultery/infidelity on the part of the appellant,
only if permission is granted for conducting a DNA test.
That it would be impossible for the respondent to establish
and confirm the assertions made in the pleadings, other than
by way of a DNA test. That DNA Testing is the most
B
legitimate and scientifically perfect means, that the husband
could use, to establish his assertion of infidelity.
vi. That in the event that the appellant accepts the direction
issued by the Court, the DNA Test will determine
conclusively the veracity of the accusations levelled by the
respondent against her. In case, she declines to comply with C
the direction issued by the Court, the allegations would be
determined by the Court, by drawing a presumption of the
nature contemplated in Section 114 of the Indian Evidence
Act, particularly, in terms of illustration (h) thereof.
vii. That by adopting the above course, the issue of infidelity D
alone would be determined, without expressly disturbing the
presumption contemplated under Section 112 of the Indian
Evidence Act.
4.6. Aggrieved by the Order dated 12th August, 2021 passed by
the Family Court, Pune, the appellant filed a Writ Petition, being Civil E
Writ Petition No.7707 of 2021, before the High Court of Judicature at
Bombay, assailing the same, inter-alia, on the ground that the Family
Court failed to appreciate that a strong prima-facie case is a sine qua
non for directing DNA profiling and that there was no evidence to support
the respondent’s prayer for DNA test. Further, that the order of the F
Family Court was contrary to the presumption provided under Section
112 of the Indian Evidence Act and the provisions of the Hindu Marriage
Act, 1955 and was contrary to the fundamental rights guaranteed under
Article 21 of the Constitution of India.
4.7. By the impugned judgment dated 22nd November, 2021 the G
High Court dismissed the Writ Petition filed by the appellant herein and
upheld the order of the Family Court dated 12th August, 2021. The pertinent
findings of the High Court may be epitomized as under:
i. That the respondent had carried out a DNA Test of Master
“X” at DNA Labs India and had produced the report of the
H
698 SUPREME COURT REPORTS [2023] 4 S.C.R.
A same dated 24th November, 2016 wherein the possibility of
the respondent being the biological father of Master “X”
was stated to be 0%. Thus, the very foundation for taking
recourse of moving an application for a direction to conduct
the DNA Test was expressly and strongly laid down by the
respondent.
B
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
C reasonable restrictions. Reliance was placed on Sharda
vs. Dharmpal, (2003) 4 SCC 493 to hold thata 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
D 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
E 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.
v. That the Family Court had been adequately sensitive in
F taking note of the statement of the respondent to the effect
that he would not disown Master “X” even if the paternity
test establishes that he is not the biological father. That the
respondent had also made prayers for the custody of the
said child, therefore, the interest of the child was not
G jeopardized in allowing the DNA test.
vi. That if the appellant failed to comply with the directions of
the Family Court, the Court can draw a presumption of the
nature contemplated under illustration (h) of Section 114 of
the Evidence Act.
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 699
[B. V. NAGARATHNA, J.]
4.8. Aggrieved by the order of the Family Court dated 12th August, A
2021, as well as the impugned judgment, the appellant has assailed the
same in the present appeal.
Submissions:
5. We have heard learned Senior Counsel, Sri Huzefa Ahmadi for
the appellant-wife, and learned Senior Counsel, Sri Kapil Sibal for the B
respondent-husband and perused the material on record.
6. At the outset, Sri Huzefa Ahmadi submitted that the High Court
had erred in upholding the direction of the Family Court, Pune, to conduct
the DNA test of the younger son of the parties. That the respondent had
failed to satisfy the test of “eminent need” as laid down by this Court in C
Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418 wherein
it was observed that the Indian law leans towards legitimacy and that a
direction for DNA test should be passed only after balancing the interests
of the parties, including the rights of the child, and if such a test is
eminently needed. That in the present case, the respondent had failed to
demonstrate that the direction for conducting DNA test could not have D
been avoided, and therefore, the direction to conduct the same was
erroneous.
6.1. Learned Senior Counsel for the appellant further contended
that the High Court erred in observing that the interest of the child would
not be jeopardized by simply relying on the statement of the respondent E
that he would not disown his son. That even if such a statement is taken
at its face value, it will not be enough to protect the child from societal
repercussions associated with the illegitimacy of his birth (if any) and
that any direction to conduct DNA test would be contrary to the interests
of the child and the same is being sought by the respondent to secure his
interests alone, without any consideration of the interest of the child. It F
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 G
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
H
700 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 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-
B
facie evidence of non-access vis-a-vis the presumption under Section
112 of the Evidence Act. That clear and satisfactory evidence of non-
access is needed to rebut the presumption under Section 112 of the
Evidence Act, vide Perumal Nadar (dead) by Lrs. vs. Ponnuswami,
(1970) 1 SCC 605.
C 6.3. That in the instant case, Master “X” was born on 17th July,
2013, during the continuance of marital relations between the parties
and that the respondent does not deny access to the appellant at the
relevant time.
6.4. That a direction to conduct a DNA test cannot be passed
D based on vague material. That the respondent has sought to rely on the
DNA test report dated 24th November, 2016. However, the authenticity
of the said DNA Report has to be established during trial and any reliance
placed on the same before the authenticity of the same is proved would,
in future, amount to giving a license to a party (such as the respondent
E herein), seeking a direction to conduct a DNA test, to produce
unauthenticated reports and this would have a devastating effect on the
child.
6.5. With respect to the assertion of the respondent that he came
across messages on the phone of the petitioner in the month of September
2016, disclosing the appellant’s adulterous actions, it was submitted on
F behalf of the appellant that no evidence or material in support of the
same had been produced by the respondent and thus, no reliance can be
placed on the same.
6.6. That it would be incorrect to state that simply because DNA
tests are scientifically accurate, the same may be routinely conducted to
G dislodge the presumption of legitimacy under Section 112 of the Evidence
Act.
6.7. It was averred that the issue of legitimacy is inextricably
linked to the allegations of adultery and the same cannot be lightly trifled
with, merely at the request of the respondent. Therefore, the presumption
H of legitimacy must be preserved by Courts.
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 701
[B. V. NAGARATHNA, J.]
With the aforesaid submissions, learned Senior Counsel, Sri A
Huzefa Ahmadi has prayed that the instant appeal be allowed and the
impugned judgment of the High Court, as well as the order of the Family
Court dated 12th August 2021, be set aside.
7. Per contra, learned Senior Counsel Sri Kapil Sibal, appearing
on behalf of the respondent-husband submitted that the impugned B
judgment of the High Court and the order of the Family Court dated 12 th
August 2021 have been passed on an unimpeachable appreciation of the
facts of the case, as well as the 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 C
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 D
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 E
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.
F
7.4. It was next submitted that Section 112 of the Evidence Act
would not come in the way of the Courts directing DNA tests to be
conducted in deserving cases. Reliance was placed on the decision of
this Court in Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 to
contend that this Court in the said case laid down the process to be
followed by Courts in directing DNA tests, while at the same time G
preserving the presumption under Section 112 of the Evidence Act. That
a similar approach must be permitted to be adopted in the present case.
7.5. It was further contended that in the present case, the most
material piece of evidence to establish the allegations of adultery is the
DNA test and the same cannot be shut out on the ground of sensitivity H
702 SUPREME COURT REPORTS [2023] 4 S.C.R.
A or privacy. Reliance was placed on the decision of this Court in Sharda
to contend that in the said case it was categorically held that an order
passed by a matrimonial court ordering a person to undergo a medical
test would not be violative of the right of personal liberty as envisaged in
Article 21 of the Constitution of India. That therefore, the reluctance
and hesitation of the appellant to allow the DNA test corroborates the
B
allegations of adultery against her and brings forth the need to conduct
the said DNA Test.
7.6. That the Family Court passed the order directing DNA test
after having due regard to the prima facie evidence brought before the
said court and the High Court has rightly confirmed the order passed by
C the Family Court. The Report of the privately conducted DNA test filed
before the Family Court, in unequivocal terms rules out the possibility of
the respondent being the biological father of the minor child. The said
Report strongly lays down the foundation for taking recourse of moving
an application for directions to conduct the DNA test. That under Section
D 14 of the Evidence Act, Family Courts have been given vast powers to
take into consideration any report, statement, documents, and information
which may assist the court to deal effectively with the dispute and thus,
the Family Court was right in accepting the report of the privately
conducted DNA test.
E With the aforesaid averments, it was prayed that the instant appeal
be dismissed as being devoid of merit and an abuse of the process of
law, and the impugned judgment as well as the order of the Family Court,
be affirmed.
Points for Consideration:
F Having heard learned Senior Counsel for 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
G 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
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 703
[B. V. NAGARATHNA, J.]
an adverse inference as contemplated under Illustration (h) A
of Section 114?
iii. What order?
Legal Scheme:
8. For an easy and immediate reference, the relevant provisions
B
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.
C
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
hundred and eighty days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is the legitimate son D
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.
x x x
E
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.
The Court may presume –– F
xxx
(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; ….…”
G
8.1. According to Sarkar on Law of Evidence, 20th Edition, in the
interest of health, order and peace in society, certain axiomatic
presumptions have to be drawn. One such presumption is the conclusive
presumption of paternity under Section 112 of the Evidence Act. Section
112 embodies the rule of law that the birth of a child during the continuance
H
704 SUPREME COURT REPORTS [2023] 4 S.C.R.
A of a valid marriage or within 280 days (i.e., within the period of gestation)
after its dissolution shall be “conclusive proof” that the child is legitimate
unless it is established by evidence that the husband and wife did not or
could not have any access to each other at any time when the child
could have been conceived. The object of this provision is to attach
unimpeachable legitimacy to children born out of a valid marriage. When
B
a child is born during the subsistence of lawful wedlock, it would mean
that the parents had access to each other. Therefore, the Section speaks
of “conclusive proof” of the legitimate birth of a child during the period
of lawful wedlock.
The latter part of the Section is with reference to proof of the
C non-access of the parents of the child to each other. Thus, the presumption
of legitimacy of the birth of the child is rebuttable by way of strong
evidence to the contrary.
The principle underlying Section 112 is to prevent an unwarranted
enquiry as to the paternity of the child whose parents, at the relevant
D time had “access” to each other. In other words, once a marriage is held
to be valid, there is a strong presumption as to the children born from
that wedlock as being legitimate. 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
E 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 co-
habitation but means the “existence” or “non-existence” of opportunities
F 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
G 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, as
stated in Section 112 of the Evidence Act. As to the meaning of
H “conclusive proof” reference may be made to Section 4 of the Evidence
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 705
[B. V. NAGARATHNA, J.]
Act, which provides that when one fact is declared to be conclusive A
proof of another, proof of one fact, would automatically render the other
fact as proved, unless contra evidence is led for the purpose of disproving
the fact so proved. A conjoint reading of Section 112 of the Evidence
Act, with the definition of “conclusive proof” under Section 4 thereof,
makes it amply clear that a child proved to be born during a valid marriage
B
should be deemed to be a legitimate child except where it is shown that
the parties to the marriage had no access to each other at any time
when the child could have been begotten or within 280 days after the
dissolution of the marriage and the mother remains unmarried, that fact
is the conclusive proof that the child is the legitimate son of the man.
Operation of the conclusive presumption can be avoided by proving non- C
access at the relevant time.
8.4. The latter part of Section 112 of the Evidence Act indicates
that if a person is able to establish that the parties to the marriage had no
access to each other at any time when the child could have been begotten,
the legitimacy of such child can be denied. That is, it must be proved by D
strong and cogent evidence that access between them was impossible
on account of serious illness or impotency or that there was no chance
of sexual relationship between the parties during the period when the
child must have been begotten. Thus, unless the absence of access is
established, the presumption of legitimacy cannot be displaced.
E
Thus, where the husband and wife have co-habited together, and
no impotency is proved, the child born from their wedlock is conclusively
presumed to be legitimate, even if the wife is shown to have been, at the
same time, guilty of infidelity. The fact that a woman is living in adultery
would not by itself be sufficient to repel the conclusive presumption in
favour of the legitimacy of a child. Therefore, shreds of evidence to the F
effect that the husband did not have intercourse with the wife at the
period of conception, can only point to the illegitimacy of a child born in
wedlock, but it would not uproot the presumption of legitimacy under
Section 112.
8.5. The presumption under Section 112 can be drawn only if the G
child 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 H
706 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 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.
B
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.
C
8.7. Section 112 was enacted at a time when modern scientific
tests such as DNA tests, as well as Ribonucleic acid tests (‘RNA’, for
short), were not in contemplation of the legislature. However, even the
result of a genuine DNA test cannot escape from the conclusiveness of
the presumption under Section 112 of the Evidence Act. If a husband
D and wife were living together during the time of conception but the DNA
test reveals that the child was not born to the husband, the conclusiveness
in law would remain irrebuttable. What would be proved, is adultery on
the part of the wife, however, the legitimacy of the child would still be
conclusive in law. In other words, the conclusive presumption of paternity
E of a child born during the subsistence of a valid marriage is that the child
is that of the husband and it cannot be rebutted by a mere DNA test
report. What is necessary to rebut is the proof of non-access at the time
when the child could have been begotten, that is, at the time of its
conception vide Kamti Devi vs. Poshi Ram, (2001) 5 SCC 311.
F 9. The next aspect of the matter that requires to be considered is
whether an adverse presumption can be drawn in the nature of Illustration
(h) to Section 114, as to the wife’s adulterous conduct when she refuses
to comply with a direction for the child to undergo a DNA test.
9.1. Section 114 states that the Court may presume the existence
G of any fact that it thinks likely to have happened, having regard to the
common course of natural events, human conduct and public and private
business, in relation to the facts of a particular case. Broadly speaking,
there are two classes of presumptions, viz presumption of fact and
presumption of law. The latter is again categorised as “rebuttable
presumptions of law” and “irrebuttable or conclusive presumptions of
H law”.
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 707
[B. V. NAGARATHNA, J.]
The Court may presume that if a man refuses to answer a question A
which he is not compelled to answer by law, the answer if given would
be unfavourable to him. The questions that one is not compelled to answer
by law, are dealt with in Sections 121-129. Refusal to answer a question
is generally a legitimate ground for unfavourable inference against the
person who may not answer the question. If a witness refuses to answer
B
the question, the Court has the power to draw an inference from such
refusal vide Section 148(4) of the Evidence Act. Section 148(4) reads
as under:-
“148.Court to decide when question shall be asked and
when witness compelled to answer.—
C
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 D
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 E
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. F
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
G
mandatory. The use of the phrase “may presume” in the said provision
indicated that that the Courts of Justice are to use their own sense and
experience in judging the effect of particular facts, and in determining
whether a presumption is to be drawn therefrom.
H
708 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 10. At this juncture, it may be useful to refer to the decision of
this Court in Dipanwita Roy wherein the interplay between Sections
112 and 114 of the Evidence Act has been discussed. The said case
arose out of divorce proceedings initiated by the respondent-husband on
the ground of adultery and infidelity. The respondent’s case was that at
the time when the child, whose paternity was in question, was conceived,
B
the parties were not living in co-habitation and on no occasion shared a
bed. The respondent sought to establish by way of a DNA test that the
son conceived during the said period was born outside wedlock and as a
result of the appellant-wife’s adulterous relationship with another person
and consequently demonstrated infidelity on the part of the appellant-
C wife. This Court took note of the plea of the respondent-husband as to
non-access at the relevant time, and accordingly opined that it would be
a fit case for directing that a DNA test be conducted. Further, in the
facts and circumstances of the said case, this Court accepted that a
DNA test would be the only way in which the respondent-husband could
establish his plea of infidelity on the part of the appellant-wife. While
D
upholding the direction of the High Court to conduct DNA test of the
minor child, this Court cautioned that if the direction to hold such a test
can be avoided, it should be so avoided, and legitimacy of the child should
not be put to peril. The relevant portions of the decision in the said case
have been usefully extracted hereinunder:
E “10. It is borne from the decisions rendered by this Court in
Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik
(supra), that depending on the facts and circumstances of the
case, it would be permissible for a Court to direct the holding of a
DNA examination, to determine the veracity of the allegation(s),
F which constitute one of the grounds, on which the concerned party
would either succeed or lose. There can be no dispute, that if the
direction to hold such a test can be avoided, it should be so avoided.
The reason, as already recorded in various judgments by this Court,
is that the legitimacy of a child should not be put to peril.
G 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 Appellant-wife. It is in
H the process of substantiating his allegation of infidelity, that the
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 709
[B. V. NAGARATHNA, J.]
Respondent-husband had made an application before the Family A
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
B
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 legitimate and scientifically perfect means, which the
husband could use, to establish his assertion of infidelity. This should C
simultaneously be taken as the most authentic, rightful and correct
means also with the wife, for her to rebut the assertions made by
the Respondent-husband, and to establish that she had not been
unfaithful, adulterous or disloyal. If the Appellant-wife is right,
she shall be proved to be so.
D
12. We would, however, while upholding the order passed by the
High Court, consider it just and appropriate to record a caveat,
giving the Appellant-wife liberty to comply 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 E
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 concerned Court,
by drawing a presumption of the nature contemplated in Section
114 of the Indian Evidence Act, especially, in terms of illustration F
(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 G
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.” H
710 SUPREME COURT REPORTS [2023] 4 S.C.R.
A This course has been adopted to preserve the right of individual
privacy to the extent possible. of course, without sacrificing the
cause of justice. By adopting the above course, the issue of
infidelity alone would be determined, without expressly disturbing
the presumption contemplated Under Section 112 of the Indian
Evidence Act. Even though, as already stated above, undoubtedly
B
the issue of legitimacy would also be incidentally involved.”
10.1. However, it is necessary to distinguish the facts of the present
case with the facts in Dipanwita Roy. In the said case, the respondent-
husband had made a specific plea of non-access in order to rebut the
presumption under Section 112. He made clear and categorical assertions
C 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
D 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
E 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”.
F Further, having regard to the compelling need for a DNA test in
the said case, in order to establish the truth, this Court directed that if the
appellant-wife therein refused to comply with the direction of the Court
regarding DNA test, the allegations of adultery as against her would be
determined by drawing an adverse inference as contemplated under
Illustration (h) of Section 114 of the Evidence Act. However, such an
G observation made in the said case cannot be regarded as a precedent
which can be applied to all cases in a strait jacket manner wherein the
wife refuses to comply with the direction of the Court regarding DNA
test.
It is highlighted at this juncture that presumptions are established
H on the basis of facts, and the Court enjoys the discretionary power, either
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 711
[B. V. NAGARATHNA, J.]
to presume a fact or not. As observed hereinabove, the facts in A
Dipanwita Roy were so compelling, so as to justify a direction to conduct
a DNA test. In the said case, the husband had taken a specific plea of
non-access. Further, the Court accepted that a DNA test would be the
only manner in which the case of adultery could be proved. However,
facts of the present case neither warrant a direction to conduct a DNA
B
test of Master “X”, nor do they justify drawing an adverse inference as
against the appellant-wife, under Section 114 of the Evidence Act, on
her refusal to subject her son to a DNA test.
As per Black’s Law Dictionary, 9th Edition, ‘Inference’ means
“a conclusion reached by considering other facts and deducing a
logical consequence from them.” C
‘Adverse Inference’ is explained as follows:
“A detrimental conclusion drawn by the fact-finder from a
party’s failure to produce evidence that is within the party’s
control. Some courts allow the inference only if the party’s D
failure is attributable to bad faith.”
The aforesaid meaning would also suggest that inferences, whether
adverse or otherwise, are to be drawn by the Court, on consideration of
facts and circumstances of each individual cases. Hence, the judgment
of this Court in Dipanwita Roy is to be read in the aforesaid context. E
In the instant case, there is no dispute about the paternity of Master
“X” as even during the course of arguments, Learned Senior Counsel
Shri Kapil Sibal admitted that Master “X” was born during the continuous
cohabitation of the parties and thus during the subsistence of a valid
marriage. The thrust of the submissions of Learned Senior Counsel Shri F
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 G
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
H
712 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 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:
B 11. With the advancement of science, DNA profiling technology
which is a tool of forensic science can, in case of disputed paternity of a
child by mere comparison of DNA obtained from the body fluid or body
tissues of the child with his parents, offer infallible evidence of biological
parentage. But, it is not always necessary to conduct a DNA test to
C ascertain whether a particular child was born to a particular person,
however, the burden of proof is on the husband who alleges illegitimacy.
He has to establish the fact that he has not fathered the child born to his
wife which is a negative plea by positive proof in accordance with Section
112 of the Evidence Act.
D 11.1. A Family Court, no doubt, has the power to direct a person
to undergo medical tests, including a DNA test and such an order would
not be in violation of the right to personal liberty under Article 21 of the
Constitution, vide Sharda. However, the Court should exercise such
power only when it is expedient in the interest of justice to do so, and
when the fact situation in a given case warrants such an exercise. Thus,
E an order directing that a minor child be subjected to DNA test should not
be passed mechanically in each and every case.
11.2. This Court has, while considering questions connected with
Section 112 of the Evidence Act, consistently expressed the stand against
DNA tests being ordered on a mere asking. Further, the law does not
F contemplate use of DNA tests as exploratory or investigatory experiments
for determining paternity. The following decisions of this Court are highly
instructive in determining the circumstances under which a DNA test
may be ordered by a Court in matters involving disputed questions of
paternity:
G i. In Goutam Kundu, this Court was required to consider
whether a blood test of a minor child could be ordered to be
conducted as a means to determine disputed questions of
paternity in what was essentially a matrimonial dispute
concerning maintenance. In the said case, the appellant-
husband therein disputed the paternity of the child and prayed
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 713
[B. V. NAGARATHNA, J.]
for blood group test of the child to prove that he was not A
the father of the child. According to him, if that could be
established, he would not be liable to pay maintenance. In
that context, this Court held that due deference must be
accorded to the presumption of legitimacy of a child born
during the subsistence of a marriage, as expressed under
B
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: C
“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 D
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 E
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. F
(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
paternity of a child, is an extremely delicate and sensitive G
aspect. Therefore, such tests must be directed to be
conducted only when the same are eminently needed. That
DNA profiling in a matter relating to paternity of a child
should not be directed by the court as a matter of course or
in a routine manner, whenever such a request is made. The
H
714 SUPREME COURT REPORTS [2023] 4 S.C.R.
A court has to consider diverse aspects including presumption
under Section 112 of the Evidence Act; pros and cons of
such order and the test of ‘eminent need’ whether it is not
possible for the court to reach the truth without use of such
test. It was further declared that a Court may direct that a
DNA test be conducted, to conclusively determine paternity,
B
only when there is a strong prima-facie case in favour of
the person seeking such a direction.
iii. In Inayath Ali vs. State of Telangana, MANU/SC/1538/
2022, the question before this Court was whether a DNA
test of two minor children could be ordered by a Court,
C with a view to facilitate proof of allegations under Sections
498A, 323, 354, 506 and 509 of Indian Penal Code, 1860.
This Court speaking through Aniruddha Bose, J. at the outset
took note of the fact that the dispute was essentially one
relating to dowry related offences, and that paternity of the
D children of the complainant was not directly related to the
allegations. The complainant therein sought for a direction
to conduct DNA test of her two minor children, in order to
establish that they were born as a result of her forced
relationship with her brother-in-law. Rejecting the
complainant’s plea, this Court held as under as to the power
E of Courts to subject children to DNA testing, in proceedings
in which their status is not required to be examined:
“In the present proceeding, we are taking two factors
into account which have been ignored by the Trial Court
as also the Revisional Court. The Trial Court allowed
F the application of the respondent no.2 mechanically, on
the premise that the DNA fingerprint test is permissible
under the law. High Court has also proceeded on that
basis, referring to different authorities including the case
of Dipanwita Roy v. Ronobroto Roy [2015 (1) SCC
G 365]. The ratio of this case was also examined by the
Coordinate Bench in the decision of Ashok Kumar
(supra).
7. The first factor, which, in our opinion, is of
significance, is that in the judgment under appeal,
H blood sampling of the children was directed, who
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 715
[B. V. NAGARATHNA, J.]
were not parties to the proceeding nor were their A
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
B
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 C
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 D
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 E
material objects who could be sent for forensic
analysis. The other factor, in our opinion, which was
ignored by the said two Courts is that the paternity of
the children was not in question in the subject-
proceeding.
F
9. The substance of the complaint was not related to
paternity of the children of the respondent no.2 but the
question was whether the offences under the aforesaid
provisions of the 1860 Code was committed against her
or not. The paternity of the two daughters of the
respondent no.2 is a collateral factor to the G
allegations on which the criminal case is otherwise
founded. On the basis of the available materials, in our
opinion, the case out of which this proceeding arises
could be decided without considering the DNA test
report. This was the reasoning which was considered H
716 SUPREME COURT REPORTS [2023] 4 S.C.R.
A by the Coordinate Bench in the case of Ashok Kumar
(supra), though that was a civil suit. Merely because
something is permissible under the law cannot be
directed as a matter of course to be performed
particularly when a direction to that effect would
be invasive to the physical autonomy of a person.
B
The consequence thereof would not be confined to the
question as to whether such an order would result in
testimonial compulsion, but encompasses right to privacy
as well. Such direction would violate the privacy
right of the persons subjected to such tests and
C could be prejudicial to the future of the two children
who were also sought to be brought within the ambit
of the Trial Court’s direction.”
(Emphasis by us)
12. Having regard to the aforesaid discussion, the following
D principles could be culled out as to the circumstances under which a
DNA test of a minor child may be directed to be conducted:
i. That a DNA test of a minor child is not to be ordered
routinely, in matrimonial disputes. Proof by way of DNA
profiling is to be directed in matrimonial disputes involving
E allegations of infidelity, only in matters where there is no
other mode of proving such assertions.
ii. DNA tests of children born during the subsistence of a valid
marriage may be directed, only when there is sufficient
prima-facie material to dislodge the presumption under
F Section 112 of the Evidence Act. Further, if no plea has
been raised as to non-access, in order to rebut the
presumption under Section 112 of the Evidence Act, a DNA
test may not be directed.
iii. A Court would not be justified in mechanically directing a
G DNA test of a 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
H DNA test or such other test to resolve the controversy.
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 717
[B. V. NAGARATHNA, J.]
The parties should be directed to lead evidence to prove or A
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
B
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. C
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, which stated that the appellant-husband was not the biological
father of the minor child. At the request of the respondent-wife, a re- D
test was ordered, which also revealed the same result. The plea with
regard to the applicability of section 112 of the Evidence Act was taken
only after the DNA test was conducted on the direction of this Court
and the report was brought on record. This Court held that when a
report of a DNA test conducted on the direction of a Court, was available E
on record and was in conflict with the presumption of conclusive proof
of the legitimacy of the child, the DNA test report cannot be ignored.
Hence, this Court relied on the DNA test report and held that the
appellant-husband would not be liable to pay maintenance. The said case
would be of no assistance to the case of the respondent herein. This is
because, in the said case, this Court was confronted with a situation in F
which DNA test report, in fact, was available and was in conflict with
the presumption of conclusive proof of legitimacy of the child, under
Section 112 of the Evidence Act. However, in the present case, no DNA
test is available till date, which was conducted on the direction of a
competent Court. Therefore, the respondent-husband would first need G
to dislodge the presumption under Section 112 of the Evidence Act and
thereafter seek a direction to conduct a DNA test of Master ‘X”.
14. The evidentiary value of blood tests for determining paternity,
has been discussed in Rayden and Jackson on Divorce and Family
Matters, (1983) Vol. I, at Pg. 1054, in the following words: H
718 SUPREME COURT REPORTS [2023] 4 S.C.R.
A “…depending on the type of litigation, samples of blood, when
subjected to skilled scientific examination, can sometimes supply
helpful evidence on various issues, to exclude a parentage set up
in the said case. But the consideration remains that the party
asserting the claim to have a child and the rival set up parents put
to blood test must establish his right to do so. The courts exercise
B
protective jurisdiction on behalf of an infant. In my
considered opinion, it would be unjust and not fair either to
direct a test for a collateral reason to assist a litigant in his
or her claim. The child cannot be allowed to suffer because
of his incapacity; the aim is to ensure that he gets his rights.
C If in a case the court has reason to believe that the
application for the blood test is of a fishing nature or
designed for some ulterior motive, it would be justified in
not according to such a prayer.”
(Emphasis by us)
D 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.
E 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
F 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
G understood as shedding light on a person’s essence, as going to the very
heart of who he/she is. That kind of intimate, personal information, which
is so highly valued in our society, is precisely what the law protects in the
right of privacy, which extends even to children.
17. Further, children have the right not to have their legitimacy
questioned frivolously before a Court of Law. This is an essential attribute
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 719
[B. V. NAGARATHNA, J.]
of the right to privacy. Courts are therefore required to acknowledge A
that children are not to be regarded like material objects, and be subjected
to forensic/DNA testing, particularly when they are not parties to the
divorce proceeding. It is imperative that children do not become the
focal point of the battle between spouses.
The Rights to Privacy, Autonomy and Identity of Children B
under The Convention on Rights of Child:
18. In 1989, the United Nations Organisation drew up the
Convention on Rights of Child with a view to provide special protection
to children, proclaiming that “childhood is entitled to special care
and assistance.” The Declaration, inter-alia, recognises that a child, C
for full and harmonious development of his or her personality, should
grow up in a family environment, in an atmosphere of happiness, love
and understanding. The Declaration further emphasises the importance
of family, as the “fundamental group of society and the natural
environment for the growth and well-being of all its members and
particularly children.” D
19. Article 19 of the Convention protects children against all forms
of violence, neglect, and abuse; Article 24(3) protects children against
traditional practices that are prejudicial to a child’s health; and Article 37
protects children against torture and cruel, inhuman, and degrading
treatment. Complementing these provisions is a child’s right to privacy, E
which extends to the physical and psychological integrity of a
child.Importantly, violations of a child’s bodily integrity that reach the
threshold of torture or cruel inhuman degrading treatment will never be
justifiable, given the absolute prohibition on such treatment. Thus, a
violation of this prohibition will always constitute a violation of a child’s F
right to privacy. However, the right to privacy has a residual application
in those cases where there is an interference with a child’s physical and/
or psychological integrity that does not reach the threshold for torture or
cruel, inhuman, and degrading treatment.In such circumstances the
question becomes whether the interference with a child’s integrity is
lawful and non-arbitrary. G
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 H
720 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 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
B
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 on the part of the appellant-wife, is with a view to provide
guidance and assistance to a child, as required under the Convention.
C Further, interference with the bodily integrity of a child in such a case,
would not be justified, as there is no nexus between the Respondent’s
request for the DNA test and the best interests of the child.
21. The concept of privacy for a child may not be equivalent to
that of an adult. However, the evolving capacity of children has been
D recognised and the Convention acknowledges the control that individuals,
including children, have over their own personal boundaries and the means
by which they define who they are in relation to other people. Children
are not to be deprived of this entitlement to influence and understand
their sense of self simply by virtue of being children. Further, Article 8 of
the Convention provides children with an express right to preserve their
E identity. Details of parentage are an attribute of a child’s identity.
Therefore, long-accepted notions about a child’s parentage must not be
frivolously challenged before Courts of Law.
Best interests of a child:
F 22. The phrase “mankind owes to the child the best it has to
give” clearly underlines our duties towards children, and it entitles them
to the best that mankind can give. This implies that the interest of the
child should be given primary consideration in actions involving children.
This idea has been effectively expressed in Article 3 of the
G Convention on the Rights of Child which reads as under:
“In all actions concerning children, whether undertaken by public
or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration”.
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 721
[B. V. NAGARATHNA, J.]
22.1 In two English decisions reported in Re L., (1968) 1 All ER A
20 and B. (B.R.) vs. B.(J.), (1968) 2 All ER 1023, blood test of the
child was permitted for determining paternity. However, the decision
in Re L. was passed based on the reasoning that a blood test can be
directed if it serves the best interest of the child. Lord Denning, MR,
was however of the view that blood tests could be ordered even in
B
cases involving paternity issues or in proceedings where it is in the best
interest of the child to have its paternity settled one way or the other.
However, in the same decision, Wilmer, LJ and Davoes, 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 C
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. D
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. E
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 between the mother and the child itself which F
is otherwise sublime. It has been said that parents of a child may have
an illegitimate relationship but a child born out of such a relationship
cannot carry the stamp of illegitimacy on its forehead, as, such a child
has no role to play in its birth. An innocent child cannot be traumatised
and subjected to extreme stress and tension in order to discover its
paternity. That is why Section 112 of the Evidence Act speaks about a G
conclusive presumption regarding the paternity of a child, subject to a
rebuttal, as provided in the second part of the Section.
In today’s world, there can even be a race to claim paternity of a
child so as to invade upon its rights, particularly, if such a child is endowed
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722 SUPREME COURT REPORTS [2023] 4 S.C.R.
A with property and wealth. There could also be exclusions in a testament
doubting the paternity of a child or an evasion in performance of parental
obligations such as payment of maintenance or living and educational
expenses by simply doubting the paternity of a child.
In many cases, this would cast a doubt on the chastity of the
B mother of a child when no such doubt could arise. As a result, the
reputation and dignity of a mother of a child would be jeopardised in
society. What is of utmost importance for a lady who is the mother of a
child is to protect her chastity as well as her dignity and reputation, in
that, she would also preserve the dignity of her child.
C No woman, particularly, who is married can be exposed to an
enquiry on the paternity of a child she has given birth to in the face of
Section 112 of the Evidence Act subject to the presumption being rebutted
by strong and cogent evidence. Section 112 particularly speaks about
birth of a child during marriage and raises a conclusive presumption
about legitimacy. Section 112 has recognised the institution of marriage
D i.e., a valid marriage for the purpose of conferring legitimacy on children
born during the subsistence of such a marriage.
As to children born outside a valid marriage, the personal law of
respective parties would apply. But in the cases of children born from a
relationship in the nature of marriage and when the parents are in a
E domestic relationship or those born as a result of a sexual assault or to
those who are in a casual relationship or to those forced or subjected to
render sexual favours and beget children, the problem of their legitimacy
gets complex and is serious.
A child should not be lost in its search for paternity. Precious
F 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.
G 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
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 723
[B. V. NAGARATHNA, J.]
questioned would sink into a vortex of confusion which can be confounded A
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 paternity is merely incidental to the controversy B
at hand, could, in some cases even contribute to a child suffering an
identity crisis. It is also necessary to take into account that some children,
although born during the subsistence of a marriage and on the desire and
consent of the married couple to beget a child, may have been conceived
through processes involving sperm donation, such as intrauterine
insemination (IUI), in-vitro fertilisation (IVF). In such cases, a DNA C
test of the child, could lead to misleading results. The results may also
cause a child to develop a sense of mistrust towards the parents, and
frustration owing to the inability to search for their biological fathers.
Further, a child’s quest to locate its biological father may compete with
the right to anonymity of the sperm donor. Having regard to such factors, D
a parent may, in the best interests of the child, choose not to subject a
child to a DNA test. It is also, antithetical to the fundamentals of the
right to privacy to require a person to disclose, in the course of proceedings
in rem, the medical procedures resorted to in order to conceive.
The reasons for the parent’s refusal may be several, and hence, it E
is not prudent to draw an adverse inference under Section 114 of the
Evidence Act, in every case where a parent refuses to subject the child
to a DNA test.
Therefore, it is necessary that only in exceptional and deserving
cases, where such a test becomes indispensable to resolve the F
controversy, the Court can direct such test. Further, a direction to conduct
DNA test of a child, is to be ordered even rarely, in cases where the
paternity of a child is not directly in issue but is merely collateral to the
proceeding, such as in the instant case.
Conclusions: G
23. ‘Illegitimate’- a term that brands an individual with the shame
of being born outside wedlock, casts a shadow on one’s identity. Times
change and attitudes may change, but the impact of growing up with the
social stigma of being illegitimate, does not. The Courts must hence be
inclined towards upholding the legitimacy of the child unless the facts
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724 SUPREME COURT REPORTS [2023] 4 S.C.R.
A are so compulsive and clinching as to necessarily warrant a finding that
the child could not at all have been begotten to the father and as such a
legitimisation of the child would result in rank injustice to the father, vide
Dukhtar Jahan vs. Mohammed Farooq,(1987) 1 SCC 624.
24. Questions as to illegitimacy of a child, are only incidental to
B 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
C 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
D 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
E when there is compelling circumstances linked with ‘access’, which
cannot be liberally used as cautioned by this Court in Dipanwita Roy.
26. The case of the Respondent-husband is that if a DNA test is
allowed and the same reveals that he is not the biological father of “X”,
as a corollary, it would be proved that the Appellant-wife committed
F adultery. We do not find favour with the approach suggested by the
Respondent-husband to prove adultery, for the following reasons:
i. It is not in dispute that Master “X”, the son stated to be
born to the Appellant-wife from the wedlock, was born in
the year 2013. DNA testing, cannot be used as a short cut
G to establish infidelity that might have occurred over a decade
ago or subsequently after the birth of Master “X”.
ii. In the circumstances of the present case, we are unable to
accept that a DNA test would be the only way in which the
truth of the matter can be established. The respondent-
husband has categorically claimed that he is in possession
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 725
[B. V. NAGARATHNA, J.]
of call recordings/transcripts and the daily diary of the A
appellant, which may be summoned in accordance with law
to prove the infidelity of the appellant. Therefore, it seems
to us that the respondent is in a position to attempt to make
out a case based on such evidence, as to adultery/infidelity
on the part of the appellant.
B
iii. No plea has been raised by the respondent-husband herein
as to non-access in order to dislodge the presumption under
Section 112 of the Evidence Act. Therefore, no prima-facie
case has been made out by the respondent which would
justify a direction to conduct a DNA test of Master “X”.
C
iv. No adverse inference can be raised in the instant case
regarding the legitimacy or paternity of Master “X” vis-à-
vis the appellant herein, on her declining to subject Master
“X” to a paternity test. Further, on the appellant declining
to subject Master “X” to a paternity test, no adverse
inference can be drawn as regards the alleged adultery on D
the part of the appellant herein can be raised. In our view,
the allegation of adultery has to be proved by the respondent
herein de hors the issue of paternity of Master “X”.
27. In the result, the present appeal is allowed. Consequently, the
impugned judgment of the High Court of Judicature at Bombay dated E
22nd November, 2021 and the order of the Family Court, Pune dated 12 th
August, 2021, are 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 F
from today.
V. RAMASUBRAMANIAN, J.
1. While I am entirely in agreement with the opinion well-crafted
by my learned sister Hon’ble Mrs. Justice B.V. Nagarathna, I thought
G
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 –
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726 SUPREME COURT REPORTS [2023] 4 S.C.R.
A • 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.
B • 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.
C • Then the respondent privately had a DNA test conducted
on the second child, in November 2016, from DNA Labs
India, which is said to be an ISO 17025 certified, A2LA
and NATA accredited agency.
• The respondent then filed a petition for divorce on the ground
D of adultery, in June 2017.
• During the pendency of the proceedings for divorce, the
respondent moved an application in November 2020 seeking
a direction to subject the second son to DNA testing at the
Government Central Forensic Laboratory.
E 3. The Family Court allowed the application filed by the respondent-
husband and the High Court also affirmed the same, forcing the wife to
come up with the above appeal, contending that under Section 112 of the
Indian Evidence Act, 18721, birth during marriage is conclusive proof of
legitimacy and that no evidence to disprove the same can be allowed by
the Court. This is especially so when the parties to the marriage admittedly
F
had access to each other during the time when the child could have been
begotten.
4. The main contention of Shri Kapil Sibal, learned senior counsel
for the respondent-husband is that the respondent is not even questioning
the legitimacy of the child, but alleging adultery against the appellant-
G wife and that therefore, on the refusal of the wife to subject the child to
DNA test, a presumption under Section 114(h) of the Evidence Act can
be drawn against the appellant-wife. In other words, his contention is
that what is applicable in the case on hand, is not Section 112 but Section
1
H For short, “Evidence Act” or the “Act”, as the case may be
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 727
[V. RAMASUBRAMANIAN, J.]
114(h) and that the Court need not subject the child to DNA test, if the A
appellant is not willing.
5. In the light of the aforesaid contention, two aspects, in my
opinion, require deeper analysis. They are (i) the interplay between
Sections 112 and 114(h) of the Evidence Act; and (ii) whose rights, are
to tilt the balance in the scales of justice? B
Interplay between Sections 112 and 114(h) of the Evidence
Act
6. Section 4 of the Evidence Act defines the expressions “may
presume”, “shall presume” and “conclusive proof”. Section 4 indicates
the course of action to be followed by a Court, wherever the Act makes C
it (i) optional to presume a fact; (ii) mandatory to presume a fact; and
(iii) obligatory for the Court to take one fact to be conclusive proof of
another. To put it in simple terms, wherever the Act uses the expression
“may presume”, it is optional for the Court either to presume or not to
presume. If a Court refuses to presume the fact in question as proved, D
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. E
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 F
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. G
• 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 of the Government. H
728 SUPREME COURT REPORTS [2023] 4 S.C.R.
A • In Section 84 in relation to genuineness of every book
purporting to be printed or published under the authority of
the Government, containing collection of the laws of the
country and reports of the decisions of the Courts.
• In Section 85 in relation to certain powers-of-attorney.
B • In Sections 85A, 85B and 85C in relation to electronic
agreements, electronic records and the electronic signature
certificates.
• In Section 89 in relation to due execution of documents
called for and not produced after notice to produce.
C • In Section 111A in relation to certain offences.
• In Section 113 in relation to cession of territory.
• In Section 113B in relation to dowry death.
• In Section 114A in relation to absence of consent in certain
D prosecutions for rape.
8. The expression “may presume” is used in the Evidence Act-
• In Section 86 in relation to certified copies of judicial records
of countries other than India.
• In Section 87 in relation to the author, publisher and the
E place and time of publication of books, maps and charts, to
which a reference is made for information on matters of
public or general interest.
• In Section 88 in relation to telegraphic messages.
• In Section 88A in relation to electronic messages.
F
• In Section 90 in relation to documents which are thirty years
old.
• In Section 90A in relation to electronic records which are
five years old.
G • In Section 113A in relation to abetment of suicide by a
married woman.
• In Section 114 in relation to existence of certain facts.
9. It is interesting to note that the Evidence Act does not include
legitimacy of birth during marriage, either under the category of a fact
H which “may be presumed” or under the category of a fact which “shall
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 729
[V. RAMASUBRAMANIAN, J.]
be presumed”. On the contrary, the Act places birth during marriage as A
“conclusive proof” of legitimacy. But Section 112 keeps a window open,
enabling a party to the marriage who questions the legitimacy of the
child, to show that he/she had no access to the other, when the child
could have been begotten.
10. We have seen that under Section 4, when one fact is declared B
by the Act to be conclusive proof, the Court shall, on proof of that 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”.
C
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 D
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. E
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
which the Court may presume to have likely to have happened, turn on
three things, namely, (i) common course of natural events; (ii) common F
course of human conduct; and (iii) common course of public and private
business. Since natural events, human conduct, etc. are not always
consistent, the presumption regarding the existence of any fact with
regard to these things, are placed only under the category of facts which
“may be presumed”.
G
13. As pointed out earlier, wherever the Act uses the expression
“may presume”, it is only optional and not mandatory for the Court to
presume the existence of such a fact. That it is only optional stands
reinforced by, (i) the Illustrations under Section 114; and (ii) the further
exposition of those Illustrations. At this stage it may be useful to extract
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730 SUPREME COURT REPORTS [2023] 4 S.C.R.
A (i) Section 114; (ii) the Illustrations under Section 114; and (iii) the
exposition of those Illustrations, all of which read as follows:-
“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
B natural events, human conduct and public and private business, in
their relation to the facts of the particular case.
Illustrations
The Court may presume—
(a) That a man who is in possession of stolen goods soon after
C the theft is either the thief or has received the goods knowing
them to be stolen, unless he can account for his possession;
(b) That an accomplice is unworthy of credit, unless he is
corroborated in material particulars;
(c) That a bill of exchange, accepted or endorsed, was accepted
D or endorsed for good consideration;
(d) That a thing or state of things which has been shown to be
in existence within a period shorter than that within which such
things or state of things usually cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
E
(f) That the common course of business has been followed in
particular cases;
(g) That evidence which could be and is not produced would,
if produced, be unfavourable to the person who withholds it;
F (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;
(i) That when a document creating an obligation is in the hands
of the obligor, the obligation has been discharged.
G 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
H
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 731
[V. RAMASUBRAMANIAN, J.]
specifically, but is continually receiving rupees in the course of his A
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 B
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 C
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 of exchange,
was a man of business. B, the acceptor, was young and ignorant
person, completely under A’s influence; D
As to illustration (d)—It is proved that a river ran in a certain
course five years ago, but it is known that there have been floods
since that time which might change its course;
As to illustration (e)—A judicial act, the regularity of which
is in question, was performed under exceptional circumstances; E
As to illustration (f)—The question is, whether a letter was
received. It is shown to have been posted, but the usual course of
the post was interrupted by disturbances;
As to illustration (g)—A man refuses to produce a document
which would bear on a contract of small importance on which he F
is sued, but which might also injure the feelings and reputation of
his family;
As to illustration (h)—A man refuses to answer a question
which he is not compelled by law to answer, but the answer to it
might cause loss to him in matters unconnected with the matter in G
relation to which it is asked;
As to illustration (i)—A bond is in possession of the obligor,
but the circumstances of the case are such that he may have
stolen it.”
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732 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 14. As may be seen from the exposition to the Illustrations, the
Court, while taking a decision to presume or not, the existence of any
fact, should have regard to some additional facts, in considering whether
such maxims do or do not apply to the particular case.
15. It is relevant to note that there are nine Illustrations under
B Section 114, from (a) to (i). Immediately after those Illustrations, the
exposition of those Illustrations begins with the words: “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”.
C 16. Let us take for instance, Illustration (h) under Section 114. It
says that if a man refuses to answer a question which he is not compelled
to answer by law, the Court may presume that the answer, if given,
would be unfavourable to him. But the exposition to Illustration (h) says
that in considering the maxim under (h), the Court shall have due regard
as to whether the refusal of the man to answer the question, is due to the
D fact that the answer may cause loss to him in matters unconnected with
the matter in relation to which it is asked.
17. In other words, 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
E 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,
F 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
G 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 to subject the child to DNA test, the Court is obliged to draw an
H adverse inference in terms of Section 114(h). According to the learned
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 733
[V. RAMASUBRAMANIAN, J.]
senior counsel, such adverse inference need not be about the paternity A
of the child but shall be only about the adulterous conduct of the appellant-
wife.
19. To drive home the point that such an adverse inference, not
about the paternity of the child, but about the adulterous conduct of the
wife is permissible in law, learned senior counsel for the respondent B
placed heavy reliance upon last two paragraphs of the decision in
Dipanwita Roy vs. Ronobroto Roy2. These paragraphs read as follows:
“17. 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 C
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 appellant wife. 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 D
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 E
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 legitimate and scientifically perfect means, which the
husband could use, to establish his assertion of infidelity. This should
simultaneously be taken as the most authentic, rightful and correct F
means also with the wife, for her to rebut the assertions made by
the respondent husband, and to establish that she had not been
unfaithful, adulterous or disloyal. If the appellant wife is right, she
shall be proved to be so.
18. We would, however, while upholding the order passed by the G
High Court, consider it just and appropriate to record a caveat,
giving the appellant wife liberty to comply 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,
2
(2015) 1 SCC 365 H
734 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 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.
B
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
C 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
D answer, if given, would be unfavourable to him;”
This course has been adopted to preserve the right of individual
privacy to the extent possible. Of course, without sacrificing the
cause of justice. By adopting the above course, the issue of
infidelity alone would be determined, without expressly disturbing
E the presumption contemplated under Section 112 of the Evidence
Act. Even though, as already stated above, undoubtedly the issue
of legitimacy would also be incidentally involved.”
20. Heavy reliance is also placed by Shri Kapil Sibal, learned
senior counsel for the respondent on paragraph 79 of the decision in
F Sharda vs. Dharmpal3. It reads as follows:
“79. If despite an order passed by the court, a person refuses to
submit himself to such medical examination, a strong case for
drawing an adverse inference would be made out. Section 114 of
the Indian Evidence Act also enables a court to draw an adverse
G inference if the party does not produce the relevant evidences in
his power and possession.”
21. But we do not know how a mix up of Section 112 and Section
114 is possible. Section 112 deals with something where the existence of
3
H (2003) 4 SCC 493
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 735
[V. RAMASUBRAMANIAN, J.]
a fact is taken to be conclusive proof, without any possibility for the A
disputing party to lead evidence for disproving the same. The only escape
route or emergency exit as we may call it, available for a person to
deprive another person of the benefit of Section 112, is to show that the
parties to the marriage did not have access to each other at the time
when the child could have been begotten. Section 114 has nothing to do
B
with, nor is in connection with conclusive proof of legitimacy dealt with
by Section 112. Both Section 112 and Section 114 fall under different
compartments. The word “presumption” itself is not used in Section
112. The expression used in Section 112 is “conclusive proof”.
Therefore, by virtue of Section 4, no evidence shall be allowed to be
given for the purpose of disproving it. C
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 D
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 E
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 F
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 G
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.”
H
736 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 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.
B
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
C 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
D 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).
E
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
F 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
G 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
H of the child, the appellant-wife may be rewarded, but not punished with
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA 737
[V. RAMASUBRAMANIAN, J.]
an adverse inference. By taking recourse to Section 114(h), the respondent A
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 B
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, C
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. D
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.
E
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 F
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
G
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
H
738 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 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
B
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
C 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
D 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.
E
Divya Pandey Appeal allowed.
(Assisted by : Shevali Monga, LCRA)
F
G
4
H (2012) 10 SCC 603
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