CAUSE TITLE:
Aparna Ajinkya Firodia Versus Ajinkya Arun Firodia
DATE OF ORDER:
02-2023
JUDGE(S):
Justices V Ramasubramanian and B V Nagarathna
PARTIES:
Petitioner:Aparna Ajinkya Firodia
Respondent:Ajinkya Arun Firodia
SUBJECT
The Supreme Court noted that only when there is sufficient prima-facie evidence to overcome the presumption under Section 112 of the Evidence Act may DNA tests on children born during the continuance of a legitimate marriage be directed.
"Children have a legal right to defend against having their legal status unintentionally questioned in court. A crucial element of the right to privacy is this." Justices B. V. Nagarathna and V. Ramasubramanian's bench made a note.
BRIEF FACTS
- In this case, the husband asked for permission to conduct a deoxyribonucleic acid test (often known as a "DNA test") to establish the paternity of the second child the wife had with the respondent while they were still married. In connection with a divorce, this application was submitted. The Family Court approved it, and the Bombay High Court upheld the decision.
ANALYSIS BY COURT
The Apex Court bench made the following observations while overturning the order:
DNA Tests: A Summary of the Fundamentals
i. DNA testing on a minor child should not be routinely requested in matrimonial disputes. DNA profiling should only be used as evidence if there are no other techniques to substantiate the claims of adultery in a marital conflict.
ii. DNA tests of children born during the continuation of a valid marriage may only be ordered when there is sufficient prima-facie evidence to disprove the presumption under Section 112 of the Evidence Act. If no claim of non-access has been made, a DNA test cannot be requested to disprove the presumption under Section 112 of the Evidence Act.
iii. A court would not be justified in ordering a DNA test for a child in a situation where the paternity of the child is not specifically in question but is merely incidental to the action.
iv. The court shouldn't order a DNA test or another type of test to resolve the issue simply because one or both parties have disputed a paternity fact. A DNA test should only be ordered if there is no other way to resolve the disagreement or if it is impossible to draw any conclusions from the material supplied or if the court orders the parties to present evidence to support or refute the paternity claim. In other words, the Court can only compel such a test in exceptional and deserving situations where doing so is required to resolve the conflict.
v. The Court must consider the possible consequences for the children born as a result of adultery, such as inheritance-related ramifications, social disgrace, etc., before ordering DNA tests to prove adultery.
Children have the right to protection from having their legal status inadvertently called into question in court.
- Children have the right to protection from having their legal status inadvertently called into question in court. An important component of the right to privacy is this. As a result, courts must recognize that kids shouldn't be treated like property and shouldn't be subjected to forensic or Genetic testing, especially if they aren't involved in the divorce. Children mustn't become the center of a dispute between parents over whether or not an adverse presumption can be made about the wife's adulterous behavior in the manner of Illustration (h) to Section 114 when she refuses to comply with a directive for the child to undergo a DNA test.
A child's understanding of privacy could differ from an adult's.
- The concept of privacy may be viewed differently by children and adults. The Convention does, however, acknowledge that children have a developing capacity and that everyone, including youngsters, has some control over their boundaries and how they define who they are about others. Just because they are young, children shouldn't be denied the opportunity to develop and understand their sense of self. In addition, Article 8 of the Convention specifically grants children the right to preserve their identity. A child's identity is characterized by parental information. As a result, disputing a child's parentage in a legal proceeding without good cause is prohibited.
A DNA test result that indicated illegitimacy would, at the least, have a negative psychological impact on the child.
- It is evident that a DNA test result indicating illegitimacy would, at the absolute least, have a negative psychological impact on the child. It can lead to not only confusion in the child's head but also to a search for the child's biological father and conflicting feelings towards someone who may have raised the child but is not the biological father. Children who don't know their fathers experience mental distress. One can picture how much more anguish and stress a young mind would experience after learning who the biological father is. In rem, proceedings have a significant impact on both the child and the otherwise perfect relationship between the mother and the child.
- It has been stated that although a kid's parents may have an illicit relationship, the child born of such a union cannot bear the stigma of illegitimacy because it had no part in its conception. A child cannot be traumatized or put under a great deal of stress and tension to find out who their father is. Hence, a conclusive presumption regarding a child's paternity is mentioned in Section 112 of the Evidence Act, subject to rebuttal as described in the second part of the section. In the modern world, there may even be a race to establish a kid's paternity to violate its rights, especially if the child in question is gifted with wealth and property. By merely questioning a child's paternity, a testator could also exclude that child or evade fulfilling other parental responsibilities including paying for the child's maintenance or housing and educational costs. This would frequently raise questions about the virginity of the child's mother when none should.
- As a result, a mother of a child would risk losing her standing in society as well as her dignity. Protecting one's chastity, dignity, and reputation is of the highest importance for a woman who is a mother because doing so would help her maintain the dignity of her kid. In light of Section 112 of the Evidence Act, no woman, in particular, one who is married, can be subject to a paternity investigation into a child she has given birth to until the presumption is disproved by substantial and convincing proof. When a kid is born during a marriage, Section 112 specifically mentions it and establishes a conclusive presumption of legitimacy. To grant legitimacy to children born while marriage is still in existence, Section 112 has recognized the institution of marriage, i.e., a lawful marriage.
A child should not be abandoned during the paternity investigation
- Children born outside of a legally binding marriage would be subject to each party's law. However, the issue of their legitimacy becomes complicated and severe when the parents are in a domestic relationship, the kid was the result of a sexual assault, the couple was in a casual relationship, or the couple was forced or coerced into performing sexual favors to have a child. A youngster shouldn't be misplaced in the paternity investigation. One's precious childhood and youth cannot be forfeited in the pursuit of paternity. This means that Section 112 of the Evidence Act, which grants legitimacy to children born during the continuance of a legitimate marriage, must be kept unless it is refuted by cogent and convincing evidence. The future of a country lies with today's youth. The self-assurance and joy of a child who is lavished with love and affection by both parents are completely different from those of a child who has lost a parent or has no parents, and much worse, from those of a child whose paternity is disputed without any compelling justification. If the courts are not cautious and responsible enough to exercise discretion most judiciously and cautiously, the situation of a child whose paternity, and therefore his legality, is in dispute, would descend into a vortex of uncertainty that can be muddled.
- The identity of a child is significantly impacted by paternity issues. Furthermore, paternity issues have a big effect on a child's identity. Regularly ordering DNA tests, especially when the paternity question is just peripheral to the debate, may, in certain situations, even contribute to a child going through an identity crisis. It's also important to keep in mind that some children, despite being born during a marriage and with the consent and desire of the married couple, may have been produced via sperm donation techniques, such as intrauterine insemination (IUI) and fertilization utilization (IVF).In such circumstances, a child's DNA test could produce false findings. A youngster may grow to distrust their parents as a result of the results and get frustrated by their failure to find their biological fathers. Also, a child's theirs with its biological father can conflict with the donor of the sperm's right to privacy. Given these considerations, a parent may decide against submitting a kid to a DNA test in the child's best interests. The requirement that someone divulge, during proceedings in rem, the medical methods used to conceive is likewise at odds with the basics of the right to privacy.
It would not be wise to always infer the worst
It is not advisable to infer negatively under Section 114 of the Evidence Act in every situation when a parent declines to submit the child to a DNA test because there may be multiple explanations for the parent's rejection. Hence, it is vital that the Court only order such a test in exceptional and deserving circumstances where it becomes necessary to do so to settle the disagreement. In cases where the paternity of a kid is not directly in dispute but is only incidental to the action, like in the present case, a direction to conduct a DNA test of a child is to be ordered even in these rare instances.
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