Mumbai: The Nagpur bench of the Bombay High Court has held that a minor child cannot be subject to DNA test merely because the man suspects his wife of adultery. The court said that the DNA test for paternity determination is ordered in exceptional cases.
Justice RM Joshi quashed February 2020 family court’s order directing a minor boy to undergo the test. The judge emphasised that merely because a man claims he is entitled to divorce on the ground of adultery does not make it an eminent case for passing order of DNA test.
“A question arises as to whether this is an eminent case for passing the order of DNA test. The candid answer to the same would be an emphatic no,” Justice RM Joshi said on July 1. The judge noted that the allegation of adultery against the wife can be proved by any other evidence than calling upon the child to undergo a paternity test.
The HC passed the order while hearing a petition by the estranged wife and her 12-year-old son challenging a February 17, 2020 order passed by a family court directing the child to undergo DNA profiling test to decide paternity.
Observing that the family court had erred, the HC said it was “absolutely obligatory” for the family court to consider the best interest of the child. Referring to a Supreme Court order, the bench said no one can be compelled to undergo a blood test, especially a minor child when he or she is not even capable of taking the decision to agree or refuse the test.
The judge underlined that in parents’ fight, the child becomes a tool, and at such times, the courts must become the custodian of rights of the minor child. “There would be more responsibility on the Court than to just decide the disputed questions between parties. The court is undoubtedly required to consider pros and cons before calling upon a minor child to undergo a blood/DNA test,” the court said.
The couple married in 2011 and in January 2013 when they separated, the woman was three-months pregnant. The man sought a DNA test of the child to prove his allegation that his estranged wife had committed adultery.
The high court in its order noted that the man in his divorce plea has made allegations about the adulterous behavior of his wife but has never made the allegation that he was not the father of the child.
