The Rajasthan High Court recently rejected a husband’s application in divorce proceedings to take on record a DNA test to prove his wife’s adultery. By the DNA test, he wanted to prove that he was not the father of the child that the couple had when they were together in their marriage life.
Justice Pushpendra Singh Bhati held that a DNA test could only be done in rare cases and the child cannot be used as a weapon to get a divorce on the ground of adultery on the basis of a DNA test.
The Single-Judge recorded, “This Court thus finds that the requirement of the DNA Paternity Test can only be in the rarest of the rare and exceptional cases, while duly keeping in mind the best interest of the child as well as the law laid down by the Hon’ble Apex Court.”
The Court also said that the primary and topmost consideration to the mental and physical health of the child has to be given.
The Court also stated, “It is high time that the society and law realize the importance of the child and childhood vis-a-vis the matrimonial disputes, as losing and winning in a marriage is having a dwarfed impact, when it is compared with losing of childhood, in terms of victimizing the child or sacrificing his constitutional right of dignity, at the altar of matrimonial conflicts.”
The Court gave the above-mentioned statement when it was dealing with a plea challenging a family Court’s order that denied the husband’s request to amend the divorce petition based on the son’s DNA paternity test.
During making his plea for divorce, the husband had not mentioned adultery as a ground.
And also, the DNA test was conducted without taking the child or the mother into confidence.
In the case, the Court found that the DNA test attacked the rights of a child which can affect his rights on property, right to lead a dignified life, right to privacy, and right to have confidence and happiness showering with love & affection from both parents.
The Court also pointed out that it was necessary for the concerned party to first prove that there was no access between the husband and wife and then going for a DNA test could make sense. However, the parties were living together at the time of their child’s birth and they had access to each other.
The judge also added, “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.”
With this statement, Justice Bhati rejected the plea of the husband. The judge also stated that in the case of choosing between the sanctity of marriage and the sanctity of childhood, the Court had to go with the sanctity of childhood.
“The parties may or may not lose the marriage, but the spirit of justice cannot afford to lose the child/childhood, as no Court can shut its eyes, so as only to achieve the goal of justice in matrimonial redressals, while losing the battle of parenthood, being detrimental to the childhood.”
Advocate Jitendra Chaudhary and Senior Advocate Sachin Acharya were the two main advocates who represented the petitioner.
Source: https://www.barandbench.com/news/litigation/dna-paternity-test-on-child-to-prove-adultery-in-matrimonial-dispute-can-be-allowed-only-in-exceptional-cases-rajasthan-high-court
