'Child's mental health paramount' — Rajasthan HC order rejecting paternity test in divorce case

Jul 03, 2023

New Delhi: "The child cannot be used as a pawn in a divorce litigation," the Rajasthan High Court has said, holding that a paternity test impinged upon a child's right to privacy and dignity.

The court was dealing with a writ petition filed by a man urging the court to consider the results of a DNA paternity test on his child to support his divorce application against his wife. The paternity test showed the man was not the child's biological father.

But a single-judge bench of Justice Dr Pushpendra Singh Bhati dismissed the petition on 26 May, holding that a DNA paternity test can only be used in exceptional circumstances while keeping the best interests and "crucial rights of the child" at the forefront.

It also noted that the man had originally filed the divorce petition on the ground of cruelty and not adultery. However, during the divorce proceedings in the trial court, a DNA test on the child was conducted, which revealed that the man was not the boy's biological father.

On the basis of this paternity report, the man wanted the trial court to allow him to modify the grounds on which he had asked for judicial separation, which was rejected. Challenging this order of the trial court, the man moved the HC, which has now dismissed his plea.

The HC said that a paternity test, which cross-references a child's DNA, violates the child's confidence and happiness about being showered with love by both parents, subjects them to "unfathomable misery", and creates a permanent dent in their psyche.

The couple had got married in 2010 and a son was born in 2018. A year later, divorce petition was filed in the family court of Bhilwara.

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Such DNA tests impinge upon the child's rights, including the right to property, dignity, privacy, confidence and happiness of one's parents, said the bench.

"This court has to keep into paramount consideration the mental and physical health of a child and the aspects adversely affecting it," the court said.

"The pain of winning or losing a battle of divorce amongst the contesting spouses is much trivial when compared with the rights of the child to have dignity and parenthood (sic)," it added.

In a choice between the sanctity of marriage and childhood, the court will always tilt towards childhood, it said, adding, "This case has to be seen through the prism of the child and not through the prism of the cantankerously fighting parents."

The court relied heavily on a 2023 Supreme Court decision that held that a DNA test cannot be ordered in a routine manner, without justifiable reasons.

In the case, the SC had said that the law prevents an unwarranted inquiry into the paternity of a child whose parents had access ("existence of opportunities of a physical relationship") with each other before the child was born.

The law allows a presumption that a child born in wedlock is legitimate. Unless absence of access is proven, this presumption cannot be withdrawn, the SC had said.

It reiterated that the "absolute need and necessity" for ordering such a test has been stressed upon in multiple cases, since frivolous claims of the husband can have an adverse impact on the mental health of the child.

Claims of adultery, however, can be proved on "strength of cogent evidence", the high court said.

Senior advocate Sachin Acharya, appearing for the man, contended that a person can lawfully be compelled to undergo such a DNA paternity test in a matrimonial case to prove or disprove paternity.

A family court, while dealing with matrimonial matters, has the power to order a medical test. It would not amount to a violation of personal liberty under the Constitution, he contended.

It was his case that the DNA test conducted by a reputed lab had proved that the man was not the fatherand that such a test was the "most important method" for proving the paternity of a child.

Acharya contended that the primary goal of any legal system is to "unearth the truth, for fair and effective dispensation of justice". It was a matter of right, and can be claimed at any time, he said, relying on case law.

However, the court did not accept the catena of judgments that had been put forth by the husband in support of his case.

"The judgments cited on behalf of the petitioner-husband have either been reversed by the hon’ble apex court… or the said judgments do not apply in the current factual perspective," the court observed.

(Edited by Smriti Sinha)

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