DNA tests: Raising a generation of bastards?
Adultery can be proved even without proving legitimacy or illegitimacy of a child.
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A recent Supreme Court judgement allowing DNA test of a child to prove wife's infidelity in a divorce case may help establish the truth. But such decisions might not further the cause of justice as it may disturb the social order.
The application of such technologies without a holistic review of laws enacted prior to such scientific developments is likely to frustrate the object of social legislations by unsettling social order and tilting the balance against women and children. The results of DNA tests answers the question raised in such cases with scientific accuracy but not without posing several questions requiring intervention by the legislature.
True, infidelity needs to be proved if divorce is sought on the ground of adultery. But it can be proved even without proving legitimacy or illegitimacy of a child. Should a child be made to face the threat of being "bastardised" because the father or mother alleges infidelity?
Justice JS Khehar, who wrote the judgement, felt there was no other way out in the case. "In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings," he said. If the conclusion is correct, a divorce on the ground of adultery would be easier if a child is born out of the illegitimate relationship.
The legislature never intended to make such distinction for the purposes of divorce on the ground of adultery. Further, opening doors for DNA tests in such cases would make it easier for men as against women to seek divorce.
Would a wife be entitled to seek DNA testing of a child born out of an adulterous relationship between her husband and another woman? In fact, it would be difficult to order the DNA test of a child without the other woman and her husband, if she is married, being party to the divorce case.
Justice Khehar's bench was not oblivious of the impact of the order on the child but stressed the wife could refuse such a test at the cost of a presumption against her. It is unlikely a similar presumption could be drawn against the husband if the other woman (or her husband, if married) refused the DNA test for the child.
In what reflects the legislative policy, Section 112 of the Evidence Act considers birth during marriage to be "conclusive proof" of legitimacy which could be rebutted only by proving that the husband did not have "access" to his wife.
A fact-finding exercise may not be relevant in view of a series of judgements starting from a 1934 Privy Council verdict holding that even proof of absence of marital intercourse would not rebut the presumption if the couple had access to each other.
Coming to justification, the bench referred to a January 2014 judgement by another bench (Justice Khehar was a part of that bench also) which disagreed with the line of judgements by holding that truth declared by a DNA test should override the presumption of legitimacy.
The bench sought to distinguish the case at hand by stressing that since the test was aimed at the determining adultery and legitimacy would only be incidentally decided, Section 112 “would not strictly come into play”.
The reasoning is unconvincing. Something which cannot be done directly, cannot be done even indirectly. Further, the stress on the fact that "truth must triumph" may not be the idea of justice envisaged by legislations aimed at preserving social norms. Science does help establish truth but the pursuit of law is justice.