APARNA AJINKYA FIRODIA versus AJINKYA ARUN FIRODIA

Citation: [2023] 4 S.C.R. 680 · Decided: 20-02-2023 · Supreme Court of India · Bench: V. RAMASUBRAMANIAN · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 11 · see the full citation network in Lexace

Judgment (excerpt)

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680
SUPREME COURT REPORTS
[2023] 4 S.C.R.
   [2023] 4 S.C.R. 680
680
APARNA AJINKYA FIRODIA
v.
AJINKYA ARUN FIRODIA
(Civil Appeal No.1308 of 2023)
FEBRUARY 20, 2023
[V. RAMASUBRAMANIAN AND B.V. NAGARATHNA, JJ.]
Evidence Act, 1872 – s.112 – Birth during marriage, conclusive
proof of legitimacy – DNA test of minor child – Circumstances under
which may be directed – Principles enumerated.
Constitution of India – Right to privacy – DNA testing of
children – Held: Children have the right not to have their legitimacy
questioned frivolously before a Court of Law – This is an essential
attribute of the right to privacy.
Evidence Act, 1872 – s.112 – Presumption u/s.112 – Absence
of plea of “non-access” to dislodge such presumption – Effect of –
Respondent-husband filed petition for divorce on the ground of
adultery against appellant-wife – Sought direction to subject the
son to DNA testing – Granted – Correctness of – Held: Once a
marriage is held to be valid, there is a strong presumption as to the
children born from that wedlock as being legitimate – This
presumption can be rebutted only by strong, clear and conclusive
evidence to the contrary – The conclusive presumption of paternity
of a child born during the subsistence of a valid marriage is that
the child is that of the husband and it cannot be rebutted by a mere
DNA test report – What is necessary to rebut is the proof of non-
access at the time when the child could have been begotten, that is,
at the time of its conception – However, in the present case, no plea
was raised by the husband as to non-access in order to dislodge
the presumption u/s.112 – Therefore, no prima facie case made out
by the respondent to justify a direction to conduct a DNA test on the
son – Also, the respondent specifically claimed that he is in
possession of call recordings/transcripts, and the daily diary of the
appellant pointing to her infidelity therefore, this is not a case where
a DNA test would be the only possible way to ascertain the truth
regarding the appellant’s adultery – Impugned judgment of the High
Court and the order of the Family Court set aside –
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681
APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA
[Per V. Ramasubramanian, J. (Concurring)] – The question as to the
permission of DNA test is to be analysed through the prism of the
child and not through the prism of the parents – The child cannot
be used as a pawn to show that the mother of the child was living in
adultery – It is always open to the respondent-husband to prove the
adulterous conduct of the wife by other evidence but, the child’s
right to identity should not be allowed to be sacrificed.
Evidence Act, 1872 – ss.112, 114 illustration (h) – Whether
an adverse presumption can be drawn under illustration (h) to s.114,
as to the wife’s adulterous conduct if she refuses to comply with a
direction for the child to undergo a DNA test – Respondent-husband
claimed that he found out the alleged adulterous conduct of the
appellant-wife 3 years after the birth of the second son, filed petition
for divorce on the ground of adultery – Sought direction to subject
the second son to DNA testing, granted – Challenged by appellant
– Relying on Dipanwita Roy case, respondent contended that he is
not questioning the legitimacy of the child, but alleging adultery
against the appellant and therefore, on her refusal to subject the
child to DNA test, a presumption u/s.114(h) can be drawn against
her – Held: The presumption under the section is discretionary and
not mandatory – Further, the facts in Dipanwita Roy were so
compelling, so as to justify a direction to conduct a DNA test as the
husband therein had taken a specific plea of non-access, unlike in
the present case – In the instant case, there is no dispute about the
paternity of the son as admittedly he was born during the continuous
cohabitation of the parties and thus during the subsistence of a
valid marriage– On facts, no adverse inference can be drawn as
against the appellant u/s.114 on her refusal to subject her son to a
DNA test – Allegation of adultery has to be proved by the respondent
de hors the issue of paternity of the son – [Per V. Ramasubramanian,
J. (Concurring)] – s.114 has nothing to do with, nor is in connection
with conclusive proof of legitimacy dealt with by s.112 – Both s.112
and s.114 fall under different compartments – s.114(h) has no
application to a case where a mother refuses to make the child
undergo DNA test – Furthermore

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