Recently, the Allahabad High Court has observed that the DNA test is the most scientific and legitimate means for a husband to establish an assertion of infidelity.
Issue raised before the Court:
The issue before the Court was that in a divorce petition filed by a husband u/s 13 of the Hindu Marriage Act on the ground of adultery, can the Court direct a wife to undergo a DNA test or refuse the same and incase the wife agrees to undergo the test, will the result of the test determine conclusively, the veracity of accusations levelled against her?
According to the husband, he and his wife were living separately since 15.01.2013, and there was no resumption of cohabitation since then.
Then on 25.06.2014, the husband gave customary divorce to the wife and was paying her maintenance as well.
A child was born to his wife on 26.01.2016 while she was residing at her parent’s house.
When the husband filed an application seeking DNA test, the wife objected on the grounds that no legal provisions were mentioned in the application, she also denied that there was no cohabitation since 15.01.2013.
The wife further claimed that she was tortured and driven out of her matrimonial house by the husband.
Reasoning of the Court
While perusing the evidence and documents, the Court noticed that the Family Court had relied on Dipanwita Roy vs Ronobroto Roy.
In that case, the husband had filed a divorce case on the ground of adultery, and the husband had then moved an application for DNA testing of himself and that of the unborn child. This application was dismissed by the Family Court but was allowed by the High Court.
When the appeal was filed before the Supreme Court, the order of the High Court was upheld, and the Court observed that despite the wife insisting that there was cohabitation, the husband denied it; therefore, a DNA test was needed.
A reference was also made to Nandlal Wasudeo Badwaik vs Lata Nandlok Badwaik & Anr when a DNA test was done, and it was proved that a different person fathered the child.
Based on the observations of the Supreme Court, the Court upheld the order of the Family Court and dismissed the petition.
Title: Neelam vs Ram Asrey
Case No. Matters under Article 227 No. 7442 of 2019
Date of Order: 21.10.2020
Coram: Hon’ble Justice Vivek Agarwal