Why DNA tests to prove infidelity will spike cases of wife beating

"Can suspicion kill?" will draw an affirmative response from activists and lawyers fighting against the prevalence of domestic violence. In September this year, a study of registered domestic violence cases in Madurai district showed that suspicion of the wife's fidelity ranked second among the reasons why husbands or male partners saw no harm in bashing up their female counterparts.

Thus, the Supreme Court's September 15 decision in the case of Dipanwita Roy versus Ronobroto Roy comes as quite a shocker, because it provides a legally sanctioned mechanism for a husband to accuse his wife of infidelity and adultery, and subject her to indignity.

The petitioner wife had appealed against the Calcutta High Court's direction that either she submit to letting her child undergo a DNA test, or accept the accusation of adultery which her husband had levelled against her. After four years of marriage, the husband had accused her of being ill-mannered, arrogant, extravagant in her tastes, disrespectful towards his mother, and of having an affair with a man who he claimed was the real father of the daughter born to the couple. Quite significantly, and even the Supreme Court in its decision acknowledged this, the husband demanded the DNA test not to prove the child's paternity, but as as testament of his wife's "going astray". He had filed for divorce and cited adultery as one of the principal grounds.

"It is sublime social policy that children should not suffer social disability on account of their parent's actions", the Supreme Court had said in the Kamti Devi case (2011), while ruling that DNA tests for determining paternity should not be allowed as a routine matter because the results could effectively impose a permanent stigma of illegitimacy on a child. Section 112 of the Indian Evidence Act states that a child born to a married couple shall be presumed to be legitimate. This can of course be disproved, but the burden is on the husband to do so. And the evidence in such a situation, though not as rigorous as that in criminal law, must be higher than that of mere weighing of possibilities. While ruling in a similar case last year, the Karnataka High Court had dismissed a husband's claim with a stinging rebuke - that a DNA test cannot be allowed as some modern day agni pariksha.

In the present case, the court didn't have to do more than asking the husband to prove that it wasn't possible for him to have any physical relations with his wife for fathering a child. Usually, in such cases, when the couple are no longer staying together, this is the standard adopted. But here the facts were different- the wife was staying with her parents after childbirth, and had gone back to her husband once she had recovered from the post-partum stress.

Instead, in a shocking leap of logic, the court ignored evident facts and thrust the burden on the wife. She had to agree to the DNA test. Of course, she wouldn't be compelled to do so, but her refusal would result in automatic validation of the husband's charges.

But this error, although grave, is only a comparatively minor harm that this judgement causes. By setting a precedent of allowing suspicious husbands to hold their wives to ransom, it indirectly contributes to the rising instances of domestic violence, many of which also end up in murder. Studies have conclusively proved that a particular kind of jealousy- suspicion of the wife or female partner's infidelity acts as a trigger for beatings, abuse, and killings. There is also a vocal, and justified demand for consigning the offence of adultery to the bin of obsolete, regressive laws.

In such circumstances, unfortunately, this judgement strengthens misogyny in a society already reeling from it.