New Delhi: DNA test of a child can be allowed to prove infidelity of a spouse despite opposition from his or her partner, the Supreme Court on Wednesday held, saying that if such test is resisted then adverse inference can be drawn against the person opposing it.
A bench headed by Justice JS Khehar upheld a Calcutta High Court order directing DNA test of child on a plea of a man making allegations of infidelity on his wife, saying that child was born out of relationship of his wife with other person.
"The respondent (husband) feels that it is only possible for him to substantiate the allegations levelled by him (of 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 husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court was fully justified," the bench said.
Referring to previous judgements of the apex court, the bench said, "It is therefore apparent, that despite the consequences of a DNA test, this court has concluded, that it was permissible for a court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties."
The bench, however, added a caveat that 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 Indian Evidence Act.
"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 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," it said.
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