77-yr-old Kerala man seeks DNA test of adult kids to prove wife’s infidelity, HC says no

The Kerala High Court recently dismissed the plea of a 77-year-old man, who sought for a DNA test to be conducted on his adult children, in order to prove his wife's adultery. 

Dismissing the man's plea, the HC said that a DNA test cannot be used as a "shortcut" to establish infidelity that might have occurred decades ago.

The man moved the court after his 68-year-old wife allegedly told him that he had not fathered their three children. According to the husband's petition, the wife made this declaration in front of the man with whom she allegedly had a relationship. 

While the husband initially approached the family court for divorce, seeking to conduct a DNA test on the children, the lower court had dismissed the plea. After this, the man appealed in the High Court. 

In the order, Justice Jyothindranath quoted French Philosopher, Michel de Montaigne to say, “A good marriage would be between a blind wife and a deaf husband.”

The court said that there was no dispute regarding the marriage or the relationship between the petitioner and the wife and added that the dispute was whether the DNA test was necessary or not. 

The court quoted from Supreme Court's judgement in Bhabani Prasad Jena Vs Orissa State Commission For Women, to say that although modern science has given the means to ascertain the paternity of a child, conducting a DNA test can also result in the invasion of right to privacy of an individual. 

Ruling against conducting a DNA test, the HC ordered: 

"If the major children are not cooperating with the DNA test on the ground of privacy, reputation and dignity, what will be the consequence in the appreciation of evidence of the case has to be kept in mind while any order is passed. No adverse inference can be drawn in the given case as the contesting parties are the husband and wife and not the children. When the children are major, surely they cannot be compelled to give blood sample in a civil proceeding where they were not parties."

The case projected by the petitioner, the court observed, seems to be that if DNA test proves the petitioner is not the biological father of the three children, the corollary is that the wife committed infidelity and there is adultery.

In this case, the court said, "It can be said that a DNA test is not a direct evidence but a fact from which an inference can be drawn."

The court said that a DNA test would be the safe route to reach the truth if the paternity of a child was the issue, but in this case, it was not so. 

"In the case of the three major children, after the passage of a long time, the DNA test cannot be used as a short cut to establish infidelity that might have occurred decades ago. Even an order to undergo DNA test itself may have its own effect on the reputation of the children in the society and it is also to be considered that they are major children born during the existence of a valid marriage, who are not party to the original proceeding," the court said. 

Writing for Newslaundry, lawyer Saurav Datta pointed out that the SC, in its ruling from 2014 in Dipanwita Roy case, said that a DNA test on the child was the surest way to prove a married woman's infidelity. The Kerala HC judgement however, "not only does justice to the wife, but also takes due care of the interests of the children born from the marriage," he wrote