DNA testing, cannot be used as a short cut to establish infidelity, Supreme Court

While hearing the Aparna Ajinkya Firodia vs Ajinkya Arun Firodia case, the Supreme Court stated that a DNA test (deoxyribonucleic acid test) is not the only source to establish infidelity. The top Court highlighted that “the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc.” The Supreme Court bench including Justices B.V. Nagarathna and V. Ramasubramanian heard the case on February 20, 2023. During the hearing, the bench also stated that “While dealing with the 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.”

In this case, the top Court addressed the question of whether DNA testing of the second child born to the wife during the subsistence of her marriage with the husband, in view to ascertain paternity. An application was filed by the husband-respondent before the Principal Judge Family Court, Pune seeking direction for divorce filed by him. The application was filed because of an adulterous relationship discovered between the appellant and Kshitij Bafna. In order to ensure the infidelity of his wife, the respondent decided to conduct a DNA test in a private laboratory and the DNA report indicated that the probability of paternity was 0%.

A writ petition was further filed by the appellant in the Supreme Court, aggrieved by the order passed by the Family Court, Pune, and High Court of Judicature at Bombay. The petition highlighted that “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, the order of the 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.” 

Moreover, the top Court also highlighted that “whether for just decision in the divorce proceeding, a DNA test is eminently necessary or not.” The bench stated that it was a wrong decision of both the Family Court and High Court to allow the application for subjecting the child to a DNA test. They further added that “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.”