Court must act as custodian of child’s rights: Bombay HC refuses DNA profiling test to establish paternity

Case Name: SKP vs KSP (Writ Petition 3499 of 2020).

INTRODUCTION:

The case involves the parental identity of the child into a matrimonial case where the mother got separated from the husband when she was pregnant and thereafter the father of the child challenged the paternity of the child.

Hence, the Bombay High Court denied the DNA test of the child even after the mother's consent.

In a landmark judgment, the Bombay High Court emphasizes child welfare over biological proof, refusing DNA profiling to establish paternity, reinforcing the court’s role as the custodian of children’s rights.

BACKGROUND OF THE CASE:

Petitioner No. 1 married respondent on 18th December 2011. On 19th January 2013 she left the matrimonial home when she's 3 months pregnant. Respondent sent the notice on 28/01/2013 calling her back to matrimonial home for cohabitation thereafter respondent filed the petition on 08/02/2013 for Judicial separation Under Section 10 of the Hindu Marriage Act in the Family Court, Nagpur. Subsequently, the Petitioner No. 1 filed a petition of  restitution of conjugal rights under Section 9 of the Hindu Marriage Act.

Meanwhile, her husband withdrew the judicial separation petition and filed for the divorce on the grounds of adultery, cruelty, and desertion.

In the course of proceedings, a child was born on 27/07/2013 and the Respondent filed an allegation petition against the petitioner No. 1, doubting her Purity and Application filed for conducting a DNA test of the child before the  Judicial Magistrate First Class, Nagpur in R.C.C. No.912/2014. The same was rejected on 19/11/2016. When the preceding at the stage of recording the evidence and DNA test application came to be allowed. Aggrieved by this subsequent order permitting the DNA Test, the wife has approached the court for filing the present petition. 

IMPORTANT LEGAL PROVISIONS: 

Section 9 Of The Hindu Marriage Act, 1955 :

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Section 10 of The Hindu Marriage Act, 1955 : 

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition for a decree of judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent.

One of the legal issues which arises in such a case is whether a DNA Test is to be conducted to determine the Paternity of the child which can be deemed valid even when it is done without the explicit consent of Mother . 

BOMBAY HIGH COURT OBSERVATION IN DNA TEST CONDUCTING:

Bombay High Court held that the court must act as a protector of the child interest and their welfare. Don't allow the DNA test of the child for the parental identification even though either parents agree to do the test.

The court directed that it can directly violate the child rights  under Article 21 of the Constitution and right to privacy and dignity. The Court refers to the Supreme Court Judgement Goutam Kundu v. State of West Bengal (1993) in which it was held by Apex Court that husband cannot force the child and wife to undergo the DNA test just because of mere suspicion and allegations. 

The Bombay High Court observed that there must be prima facie justification to conduct the DNA test. Therefore it concluded that courts must avoid conducting the DNA test of a child if it is necessary to consider the psychological, emotional, and legal impact on the child.

CONCLUSION:

The Bombay High court emphasised that while considering the DNA test the court must act sensitively and prioritise the child's dignity, privacy. It  should not be followed in routine. It should be Directly only exceptional cases , circumstances and Where absolutely necessary to serve justice but child welfare should not be compromised. Ultimately, the Court held that judicial discretion must be exercised cautiously in such sensitive matters, with the child's emotional, social, and legal well-being being of paramount importance.

With all these key observations, the court dismissed the husband’s plea.  Empower Your Legal Practice with AI – Join Our Free Webinar!

Are you a legal professional looking to boost your efficiency and stay ahead in a competitive field? Discover the power of Lawttorney.AI – the cutting-edge tool designed to streamline legal research, automate tasks, and enhance productivity.

👉 Don't miss out! Reserve your spot in our FREE webinar and experience the future of legal practice today. Register Now