# APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA

- **Citation:** [2023] 4 S.C.R. 680
- **Court:** Supreme Court of India
- **Decided:** 2023-02-20
- **Case number:** Civil Appeal No.1308 of 2023
- **Bench:** V. Ramasubramanian, B.V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aparna-ajinkya-firodia-v-ajinkya-arun-firodia-37067
- **Pages:** 59

## Headnote

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 nonaccess 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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[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.1

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 [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 nonaccess 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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[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, 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.
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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.
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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
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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
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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
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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
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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
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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
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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.
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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]
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APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA
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]
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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.
Case Law Reference
[2014] 1 SCR 120
distinguished
Para 4.5 (iii)
[2003] 3 SCR 106
relied on
Para 4.7 (ii)
[1993] 3 SCR 917
relied on
Para 6
[2010] 9 SCR 457
relied on
Para 6.2
[1971] 1 SCR 49
referred to
Para 6.2
[2014] 11 SCR 553
distinguished
Para 7.4
[2009] 5 SCR 1049
relied on
Para 8.1
[2001] 3 SCR 729
relied on
Para 8.7
[1987] 1 SCR 1086
relied on
Para 23
In the Judgment of V. Ramasubramanian, J.
[2014] 11 SCR 553
referred to
Para 19
[2003] 3 SCR 106
referred to
Para 20
[2012] 12 SCR 256
referred to
Para 34
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1308
of 2023.
From the Judgment and Order dated 22.11.2021 of the High Court
of Judicature at Bombay in CWP No.7077 of 2021.
Huzefa Ahmadi, Sr. Adv., Sanyat Lodha, Ms. Aakashi Lodha,
Ravi Raghunath, Sanjana, Advs. for the Appellant.
Kapil Sibal, Sr. Adv., Rohan Rajadaksha, Ms. Percis Ankleshwari,
Shlok Chandra, Vikrant Pachnanda, Ms. Aparajita Jamwal, Rishabh
Parikh, Anupam Sambhus, Ms. Arunima Kumari, Mukul Katyal, Keshav
Garg, Advs. for the Respondent.
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APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA
The Judgments of the Court were delivered by
NAGARATHNA, J.
Leave granted.
2. Indian Law has proceeded on the assumption that parents are
persons who beget a child or who assume the legal obligations of
parenthood through formal adoption of child. Under the Indian legal
spectrum, a husband is strongly presumed to be the father of a child
born to his wife. Thus, there is a strong presumption regarding the
paternity of a child. This presumption can be overcome only by evidence
precluding any procreative role of the husband, such as by showing that
the husband and wife had no access to each other at the relevant time
of possible conception. In the absence of proof of non-access, the law
considers the husband's paternity to be conclusively established if they
cohabited when the child was likely to have been conceived. By allowing
rebuttal with proof, that the husband could not have been the biological
father, the marital presumption was implicitly premised, in part, on a
policy linking parenthood with biological reproduction and on an
assumption about the probability of the husband's genetic contribution.
The presumption protects social parentage over biological parentage.
Scientific proof now makes it possible to know with virtual certainty
whether a man is genetically related to a child. As a result, Courts are
routinely confronted with husbands seeking to disavow their paternity
based on newly acquired DNA evidence, notwithstanding them having
long performed the social role of father to a child. The short question in
the present appeal is as to how a Court can prevent the law's tidy
assumptions linking paternity with matrimony, from collapsing, particularly
when parties are routinely attempting to dislodge such presumptions by
employing modern genetic profiling techniques.
Factual Background:
3. The present controversy emerges from an application (Exhibit
84/B) filed by the respondent-husband on 9th November, 2020 before
the Principal Judge Family Court, Pune, praying for a direction to subject
Master "X", the second child born to the appellant-wife, during the
subsistence of her marriage with the respondent, to deoxyribonucleic
acid test ("DNA test" for short), with a view to ascertain his paternity.
The said application was filed by the respondent-husband in a petition
for divorce filed by him under Sections 13(1)(i) and (ia) of the Hindu
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Marriage Act, 1955, being Petition No. P.A. 639 of 2017. The same was
allowed by the Family Court, Pune by an order dated 12th August, 2021
and confirmed by the High Court of Judicature at Bombay by way of
the impugned judgment dated 22nd November, 2021 in Civil Writ Petition
No.7077 of 2021.
4. Succinctly stated, the facts leading to the present appeal are as
follows:
4.1. The appellant and the respondent got married as per Hindu
rites and rituals at Pune, on 23rd November, 2005. Their first child, Master
"Y", was born on 21st December, 2009. During the subsistence of their
marriage, a second son, namely, Master "X", was born on 17th July,
2013.
4.2. On 1st June, 2017, the respondent-husband, filed a petition for
divorce under Sections 13(1)(i) and (ia) of the Hindu Marriage Act,
1955 being Petition No.P.A. 639 of 2017 and a petition seeking custody
of their two children, being P.D. No. 17 of 2017 against the appellantwife, before the Family Court, Pune. In the petition for divorce, the
respondent, inter-alia, alleged that the appellant-wife was in an
adulterous relationship with one Kshitij Bafna, and the respondent
discovered the same on 14th September, 2016 when he found that certain
intimate messages had been exchanged between the appellant and Kshitij
Bafna.
4.3. On 9th November, 2020, the respondent filed an application,
being application 84/B, before the Family Court, Pune seeking a direction
to subject Master "X", the second child born to the appellant-wife, during
the subsistence of her marriage with the respondent to DNA testing,
with a view to ascertain the child's paternity. The contents of the said
application may be summarised as under:
i.
That Master "X", the second son born to the appellantwife, during the subsistence of her marriage with the
respondent, was born out of an adulterous relationship
between the appellant and Kshitij Bafna.
ii.
That the respondent discovered that the appellant had been
in an adulterous relationship with Kshitij Bafna, while he
was using her phone on 14th September, 2016. That on being
confronted about the same the appellant admitted to the
adulterous relationship with Kshitij Bafna.
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APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA
[B. V. NAGARATHNA, J.]
iii.
That the respondent, being unwilling to accept the truth as
confirmed by the appellant, decided to further investigate
the issue of Master "X's" paternity and hence, caused a
DNA test to be conducted at DNA Labs India, a private
laboratory. The DNA Test report dated 24th November, 2016
indicated as follows:
"The alleged father lacks genetic markers that must be
contributed to the child by the biological father. The
probability of paternity is 0%".
iv.
That the respondent was certain that Master "X" was born
as a result of the adulterous relationship of the appellant.
However, in order to substantiate his contention as to the
appellant's infidelity as a ground for divorce, it was
necessary to conduct a DNA test which would reveal that
the respondent was not the biological father of Master "X".
v.
That a DNA test is the most legitimate and scientifically
perfect means, that the respondent could use to establish
the assertion of infidelity on part of the appellant. That in
the absence thereof it would be impossible for the
respondent to conclusively establish the assertions made
by him in the pleadings.
vi.
That the respondent had access to telephonic conversations
between him and Kshitij Bafna, wherein Kshitij Bafna had
expressed his anger at the respondent for intimating his wife
i.e., the wife of Mr. Bafna, of his illicit relationship with the
appellant. That Kshitij Bafna when confronted about the
paternity of Master "X", did not deny that the child was
born to him and the appellant. That the appellant was in the
habit of maintaining a daily diary wherein she had penned
her thoughts as to her adulterous relationship. Having regard
to the sensitive nature of the conversation and the contents
of the diary, the respondent sought for the leave of the Family
Court to produce the recording, the diary and other
evidences, if necessary, at the time of final hearing of the
divorce proceedings.
4.4. The appellant filed an affidavit in reply, opposing the application
filed by the respondent seeking a direction to conduct DNA test of Master
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[2023] 4 S.C.R.
"X", inter-alia, contending that the respondent had not made out a primafacie case requiring the Court to exercise its discretion to direct DNA
test to be conducted as prayed for.
4.5. By an order dated 12th August, 2021, the Family Court, Pune,
allowed the application filed by the respondent seeking DNA test of
Master "X" and further observed that in the event that the appellant
fails to comply with the directions of the Court, 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 Indian Evidence
Act, 1872 (hereinafter "Evidence Act" for the sake of brevity). The
salient findings of the Family Court may be encapsulated as under:
i.
That the respondent had filed the application seeking direction
to conduct DNA test of Master "X", only with a view to
establish adultery on the part of the appellant and not to
disparage the paternity of the minor child.
ii.
On perusal of the DNA Test Report issued by DNA Labs
India dated 24th November, 2016, the Family Court
concluded that the possibility of the respondent being the
biological father Master "X" has been excluded. That in
view of Section 14 of the Family Courts Act, 1984 the said
Report can be read as evidence.
iii.
Reliance was placed on the decision of this Court in Nandlal
Wasudeo Badwaik vs. Lata Nandlal Badwaik, (2014)
2 SCC 576, to hold that Section 112 of the Evidence Act
was enacted at a time when scientific advancement in the
field of DNA test was not as sophisticated. That although
Section 112 raises a presumption of conclusive proof on
the satisfaction of the conditions enumerated therein, the
same is rebuttable. That where the truth of a fact is known,
there is no need or room for any presumption. Thus, when
there is a conflict between a conclusive proof envisaged
under law and a proof based on scientific advancement
accepted by the world community to be correct, the latter
must prevail over the former.
iv.
That the respondent had made out a prima-facie case
justifying the Court's exercise of discretionary power to
direct conducting DNA Test by collecting blood samples of
the respondent and the minor child.
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APARNA AJINKYA FIRODIA v. AJINKYA ARUN FIRODIA
[B. V. NAGARATHNA, J.]
v.
That the respondent would be able to substantiate his
allegations of adultery/infidelity on the part of the appellant,
only if permission is granted for conducting a DNA test.
That it would be impossible for the respondent to establish
and confirm the assertions made in the pleadings, other than
by way of a DNA test. That DNA Testing is the most
legitimate and scientifically perfect means, that the husband
could use, to establish his assertion of infidelity.
vi.
That in the event that the appellant accepts the direction
issued by the Court, the DNA Test will determine
conclusively the veracity of the accusations levelled by the
respondent against her.