In a significant shift from the age-old legal convention that prioritised a child’s legitimacy in a marriage over a divorce being sought on the ground of infidelity by a partner, the Supreme Court on Wednesday ruled that a DNA test can be ordered by courts as a “legitimate and scientifically perfect” tool to establish adultery in divorce cases.

“DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the wife is right, she shall be proved to be so,” said a bench of Justices J S Khehar and R K Agrawal.

The court, which upheld an order allowing a man’s plea to have a DNA test conducted on a child born to his wife, said that but for the test, it would be impossible for the husband to establish and confirm the assertions of adultery made against him in his divorce petition.

It also sought to balance the rights of the parties by allowing the spouse to decline the test on the child at his or her own peril since the trial court could then draw adverse inferences from such a refusal.

The DNA tests are now being often ordered by courts for determination of paternity but allowing such scientific examinations for deciding upon the issue of infidelity too tends to move away from legal precedents.

In a body of judgements, the Supreme Court has accorded precedence to the legitimacy of a child born out of valid wedlock, while snubbing the requests for carrying out such tests on the child to establish adultery. Section 112 of the Indian Evidence Act also creates a legal presumption that the birth of a child during marriage would be a “conclusive proof of legitimacy.”

The Supreme Court, in a 2001 judgement, had held: “The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g, if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable.”

It had again, in 2009, ruled that “even the evidence of adultery by wife which though amounts to very strong evidence, it, by itself, is not quite sufficient to repel this presumption and will not justify finding of illegitimacy if husband has had access” to her. Similarly, several other judgements held that protecting the legitimacy of a child was paramount and have to give way to other considerations.

In Wednesday’s judgement, the bench further noted that by allowing DNA tests in such cases, “undoubtedly the issue of legitimacy would also be incidentally involved” but it could not be lost sight of that the purpose of such a plea would be to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act, which laid down infidelity as a ground for divorce.

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