Aparna Ajinkya Firodia vs Ajinkya Arun Firodia

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, on facts, respondent had access to the wife both at the time when the child was begotten and for a full period of three years even thereafter – Therefore, the conclusive proof u/s.112 has actually come into play in this case – Contention of the respondent that what is sought to be invoked is only s.114(h) and not s.112 is rejected.

Evidence Act, 1872 – s.112 – Question of legitimacy of the child, burden of proof – Held: Since s.112 creates a presumption of legitimacy that a child born during the subsistence of a marriage is deemed to be legitimate, a burden is cast on the person who questions the legitimacy of the child.

Evidence Act, 1872 – s.112 – Principle underlying – “access”, “non-access” – Meaning – Held: Principle underlying s.112 is to prevent an unwarranted enquiry as to the paternity of the child whose parents, at the relevant time had “access” to each other – “access” or “non-access” does not mean actual co-habitation but means the “existence” or “non-existence” of opportunities for sexual relationship – s.112 refers to point of time of birth as the crucial aspect and not to the time of conception – The time of conception is relevant only to see whether the husband had or did not have access to the wife – Operation of the conclusive presumption can be avoided by proving non-access at the relevant time.

International Law – International Conventions/Treaties– The Convention on Rights of Child – Best interests of a child – Rights to Privacy, Autonomy and Identity of Children – Discussed. Evidence Act, 1872 – s.112 – Object of – Held: A child should not be lost in its search for paternity – Precious childhood and youth cannot be lost in a quest to know about one’s paternity – Therefore, the wholesome object of Section 112 of the Evidence Act which confers legitimacy on children born during the subsistence of a valid marriage, subject to the same being rebutted by cogent and strong evidence, is to be preserved – A finding as to illegitimacy, if revealed in a DNA test, effect on the child psychologically, discussed.

Evidence Act, 1872 – ss.4, 112 – Held: A combined reading of ss.4 and 112 would show that once the party questioning the legitimacy of the birth of a child shows that the parties to the marriage had no access to each other, then the benefit of s.112 is not available to the party invoking s.112 – However, if such a party is not able to prove that he had no access to the other party to the marriage, then the shield of s.112 protects the other party to such an extent that it cannot be pierced by any amount of evidence in view of the prohibition contained in s.4.

Words & Phrases:

“may presume”, “shall presume” and “conclusive proof” – Discussed – Evidence Act, 1872 – ss.4, 112 and 114. “inference”, “adverse inference” – Meaning of – Discussed. Maxims – Pater est quem nuptiae demonstrant – Held: Questions as to illegitimacy of a child, are only incidental to the claim of dissolution of marriage on the ground of adultery or infidelity – Allowing DNA tests to be conducted on a routine basis, in order to prove adultery, would amount to redefinition of the aforesaid maxim, which means, the father is he whom the nuptials point out. Allowing the appeal, the Court

HELD: 1. The principle underlying Section 112 is to prevent an unwarranted enquiry as to the paternity of the child whose parents, at the relevant time had “access” to each other. In other words, 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. Section 112 of the Evidence Act is based on the presumption of public morality and public policy. Since Section 112 creates a presumption of legitimacy that a child born during the subsistence of a marriage is deemed to be legitimate, a burden is cast on the person who questions the legitimacy of the child. Further, “access” or “nonaccess” does not mean actual cohabitation but means the “existence” or “non-existence” of opportunities for sexual relationship. Section 112 refers to point of time of birth as the crucial aspect and not to the time of conception. The time of conception is relevant only to see whether the husband had or did not have access to the wife. Thus, birth during the continuance of marriage is “conclusive proof” of legitimacy unless “nonaccess” of the party who questions the paternity of the child at the time the child could have been begotten is proved by the said party. A conjoint reading of Section 112 of the Evidence Act, with the definition of “conclusive proof” under Section 4 thereof, makes it amply clear that a child proved to be born during a valid marriage should be deemed to be a legitimate child except where it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten or within 280 days after the dissolution of the marriage and the mother remains unmarried, that fact is the conclusive proof that the child is the legitimate son of the man. Operation of the conclusive presumption can be avoided by proving non-access at the relevant time. The latter part of Section 112 of the Evidence Act indicates that if a person is able to establish that the parties to the marriage had no access to each other at any time when the child could have been begotten, the legitimacy of such child can be denied. That is, it must be proved by strong and cogent evidence that access between them was impossible on account of serious illness or impotency or that there was no chance of sexual relationship between the parties during the period when the child must have been begotten. Thus, unless the absence of access is established, the presumption of legitimacy cannot be displaced. Thus, where the husband and wife have co-habited together, and no impotency is proved, the child born from their wedlock is conclusively presumed to be legitimate, even if the wife is shown to have been, at the same time, guilty of infidelity. The fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a child. Therefore, shreds of evidence to the effect that the husband did not have intercourse with the wife at the period of conception, can only point to the illegitimacy of a child born in wedlock, but it would not uproot the presumption of legitimacy under Section 112. The presumption under Section

112 can be drawn only if the child is born during the continuance of a valid marriage and not otherwise. “Access” or “non-access” must be in the context of sexual intercourse that is, in the sexual sense and therefore, in that narrow sense. Access may for instance, be impossible not only when the husband is away during the period when the child could have been begotten or owing to impotency or incompetency due to various reasons or the passage of time since the death of the husband. Thus, even though the husband may be cohabiting, there may be non-access between the husband and the wife. One of the instances of non-access despite co-habitation is the impotency of the husband. If the husband has had access, adultery on the wife’s part will not justify a finding of illegitimacy. Thus, “non-access” has to be proved as a fact in issue and the same could be established by direct and circumstantial evidence of an unambiguous character. Thus, there could be “non-access” between the husband and wife despite co-habitation. Conversely, even in the absence of actual cohabitation, there could be access. Section 112 was enacted at a time when modern scientific tests such as DNA tests, as well as Ribonucleic acid tests (‘RNA’, for short), were not in contemplation of the legislature. However, even the result of a genuine DNA test cannot escape from the conclusiveness of the presumption under Section 112 of the Evidence Act. If a husband and wife were living together during the time of conception but the DNA test reveals that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. What would be proved, is adultery on the part of the wife, however, the legitimacy of the child would still be conclusive in law. In other words, 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. [Paras 8.1-8.7][704-D-G; 705-B-H; 706A-E]

Sham Lal vs. Sanjeev Kumar, (2009) 12 SCC 454 : [2009] 5 SCR 1049; Kamti Devi vs. Poshi Ram, (2001)

5 SCC 311 : [2001] 3 SCR 729 – relied on.

2.1 For the purpose of reaching one conclusion, the Court can rely on a factual presumption unless the presumption is disproved or dispelled or rebutted. However, Illustration (h) to Section 114 has given enough discretionary power to the Court to draw certain inferences from the facts. The presumption under the section is discretionary and not mandatory. The use of the phrase “may presume” in the said provision indicated that that the Courts of Justice are to use their own sense and experience in judging the effect of particular facts, and in determining whether a presumption is to be drawn therefrom. Presumptions are established on the basis of facts, and the Court enjoys the discretionary power, either to presume a fact or not. The facts in Dipanwita Roy were so compelling, so as to justify a direction to conduct a DNA test. In the said case, the husband had taken a specific plea of non-access. Further, the Court accepted that a DNA test would be the only manner in which the case of adultery could be proved. Having regard to the compelling need for a DNA test in the said case, in order to establish the truth, this Court directed that if the appellant-wife therein refused to comply with the direction of the Court regarding DNA test, the allegations of adultery as against her would be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114 of the Evidence Act. However, such an observation made in the said case cannot be regarded as a precedent which can be applied to all cases in a strait jacket manner wherein the wife refuses to comply with the direction of the Court regarding DNA test. Facts of the present case neither warrant a direction to conduct a DNA test of Master ‘X’, nor do they justify drawing an adverse inference as against the appellant-wife, under Section

114 of the Evidence Act, on her refusal to subject her son to a DNA test. Inferences, whether adverse or otherwise, are to be drawn by the Court, on consideration of facts and circumstances of each individual cases. Hence, the judgment of this Court in Dipanwita Roy is to be read in the aforesaid context. In the instant case, there is no dispute about the paternity of Master ‘X’ as even during the course of arguments it was admitted that Master ‘X’ was born during the continuous cohabitation of the parties and thus during the subsistence of a valid marriage. The issue of paternity of Master ‘X’ is alien to the issue of adultery on the part of the appellant herein. Master ‘X’ being a legitimate child of the parties herein has nothing to do with the alleged adultery on the part of the appellant herein. Hence, the judgment of this Court in Dipanwita Roy is of no assistance to the respondent herein.[Paras 9.2, 10.1][707-F-H; 710-H; 711-A; 710-F-G; 711B, E-F, H; 712-A] Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 : [2014] 11 SCR 553 – distinguished.

Black’s Law Dictionary, 9th Edition – referred to.

2.2 The following principles could be culled out as to the circumstances under which a DNA test of a minor child may be directed to be conducted: i. That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions. ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed. iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding. iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test. v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc. [Para 12][716-D-H; 717-A-C]

3. 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. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. [Para 17][718-H; 719-A]

4. The concept of privacy for a child may not be equivalent to that of an adult. However, the evolving capacity of children has been recognised and the Convention acknowledges the control that individuals, including children, have over their own personal boundaries and the means by which they define who they are in relation to other people. Children are not to be deprived of this entitlement to influence and understand their sense of self simply by virtue of being children. [Para 21][720-D]

5. A parent may, in the best interests of the child, choose not to subject a child to a DNA test. It is also, antithetical to the fundamentals of the right to privacy to require a person to disclose, in the course of proceedings in rem, the medical procedures resorted to in order to conceive. The reasons for the parent’s refusal may be several, and hence, it is not prudent to draw an adverse inference under Section 114 of the Evidence Act, in every case where a parent refuses to subject the child to a DNA test. [Para 22.3][723-D-E]

6. Questions as to illegitimacy of a child, are only incidental to the claim of dissolution of marriage on the ground of adultery or infidelity. Allowing DNA tests to be conducted on a routine basis, in order to prove adultery, would amount to redefinition of the maxim, “Pater est quemnuptiae demonstrant” which means, the father is he whom the nuptials point out. While dealing with allegations of adultery and infidelity, a request for a DNA test of the child, not only competes with the presumption under Section 112, but also jostles with the imperative of bodily autonomy. [Para 24][724-B-C]

Dukhtar Jahan vs. Mohammed Farooq, (1987) 1 SCC

624 : [1987] 1 SCR 1086 – relied on.

7. The case of the Respondent-husband is that if a DNA test is allowed and the same reveals that he is not the biological father of ‘X’, as a corollary, it would be proved that the Appellantwife committed adultery. This Court does not find favour with the approach suggested by the Respondent-husband to prove adultery, for the following reasons: i. It is not in dispute that Master ‘X’, the son stated to be born to the Appellant-wife from the wedlock, was born in the year 2013. DNA testing, cannot be used as a short cut to establish infidelity that might have occurred over a decade ago or subsequently after the birth of Master ‘X’. ii. In the circumstances of the present case, a DNA test would not be the only way in which the truth of the matter can be established. The respondent-husband has categorically claimed that he is in possession of call recordings/transcripts and the daily diary of the appellant, which may be summoned in accordance with law to prove the infidelity of the appellant. Therefore, it seems that the respondent is in a position to attempt to make out a case based on such evidence, as to adultery/infidelity on the part of the appellant. iii. No plea has been raised by the respondent-husband herein as to non-access in order to dislodge the presumption under Section 112 of the Evidence Act. Therefore, no prima-facie case has been made out by the respondent which would justify a direction to conduct a DNA test of Master ‘X’. iv. No adverse inference can be raised in the instant case regarding the legitimacy or paternity of Master ‘X’ vis-à-vis the appellant herein, on her declining to subject Master ‘X’ to a paternity test. Further, on the appellant declining to subject Master ‘X’ to a paternity test, no adverse inference can be drawn as regards the alleged adultery on the part of the appellant herein can be raised. The allegation of adultery has to be proved by the respondent herein de hors the issue of paternity of Master ‘X’. [Para 26][724-F-H; 725-A-D]

Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik, (2014) 2 SCC 576 : [2014] 1 SCR 120 – distinguished. Sharda vs. Dharmpal, (2003) 4 SCC 493 : [2003] 3 SCR 106; Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418 : [1993] 3 SCR 917; Goutam Kundu, Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633 : [2010]

9 SCR 457; Inayath Ali vs. State of Telangana, MANU/SC/1538/2022; Ashok Kumar vs. Raj Gupta, (2022) 1 SCC 20 – relied on.

Perumal Nadar (dead) by Lrs. vs. Ponnuswami, (1970)

1 SCC 605 : [1971] 1 SCR 49; Uday Chand Dutt vs. Saibal Sen, (1987) Supp SCC 506 – referred to.

Re L., (1968) 1 All ER 20; B. (B.R.) vs. B.(J.), (1968) 2 All ER 1023 – referred to.

Sarkar on Law of Evidence, 20th Edition; Rayden and Jackson on Divorce and Family Matters (1983) Vol. I, at Pg. 1054 – referred to.

Per V. RAMASUBRAMANIAN, J. (Concurring)

1.1 While dealing with a situation where a presumption in terms of Illustration (h) under Section 114 is sought to be raised, the Court has to examine whether the refusal of the person to answer, is on account of the fear that the answer may produce an unfavourable result to him in relation to the matter in issue or due to the fear that such an answer might cause loss to him in a matter unconnected to it. Section 112 deals with something where the existence of a fact is taken to be conclusive proof, without any possibility for the disputing party to lead evidence for disproving the same. The only escape route, available for a person to deprive another person of the benefit of Section 112, is to show that the parties to the marriage did not have access to each other at the time when the child could have been begotten. Section

114 has nothing to do with, nor is in connection with conclusive proof of legitimacy dealt with by Section 112. Both Section 112 and Section 114 fall under different compartments. The word “presumption” itself is not used in Section 112. The expression used in Section 112 is “conclusive proof”. Therefore, by virtue of Section 4, no evidence shall be allowed to be given for the purpose of disproving it. If one of the parties to the marriage shows that he had no access to the other at the time when the child could have been begotten, then Section 112 itself does not get attracted. On the contrary, if the parties have had access to each other at the relevant point of time, the fate of the question relating to legitimacy is sealed. [Paras 17, 21 and 22][732-E; 735-A-D]

1.2 In the case on hand, the very pleading of the respondent in his petition for divorce before the Family Court is that the second child-Master ‘X’ was born on 17.7.2013 and that the respondent came to know about the alleged adulterous behavior of the appellant herein, only on 14.9.2016. The pleading of the respondent to the effect that after September 2016, he has had no physical relationship with the appellant-wife means that he has at least had access to the wife both at the time when the child was begotten and for a full period of three years even thereafter. Therefore, the conclusive proof under Section 112 has actually come into play in this case. [Paras 24, 25][735-F; 736-A-B]

1.3 The stage at which the wife may refuse to subject the child to DNA, would arise only after the Court comes to the conclusion that a DNA test should be ordered. [Para 26][736-C]

1.4 An adverse inference, in law, can be drawn only against the person who refuses to answer a question. In the case on hand, the appellant has a dual role to play, namely, that of the respondent’s wife and that of Master X’s mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her. By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant-wife may be rewarded, but not punished with an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant to a catch-22 situation. Therefore, Section 114(h) has no application to a case where a mother refuses to make the child undergo DNA test. What comes out of a DNA test, as the main product, is the paternity of the child, which is subjected to a test. Incidentally, the adulterous conduct of the wife also stands established, as a by-product, through the very same process. Section 114 uses only the word “may” and not the word “shall”. Therefore, the constraints articulated in the exposition to Illustration (h) under Section 114 may dissuade the Court not to presume at all. Hence, the contention of the respondent that what is sought to be invoked is only Section 114(h) and not Section

112 is rejected. [Paras 28-32][736-F-H; 737-A-E]

2. The question as to whether a DNA test should be permitted on the child, 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 by other evidence, the adulterous conduct of the wife, but the child’s right to identity should not be allowed to be sacrificed. [Para 33][737-F-G]

Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365 : [2014] 11 SCR 553; Sharda vs. Dharmpal (2003) 4 SCC 493 : [2003] 3 SCR 106; Sahara India Real Estate Corporation Limited & Ors. vs. Securities and Exchange Board of India & Anr. (2012) 10 SCC 603 : [2012] 12 SCR 256 – referred to.