By disallowing a DNA test to prove infidelity, Kerala High Court does justice

A strict adherence to a problematic apex court precedent would have been inimical to the interests of wives and children.

WrittenBy:Saurav Datta
Date:
Article image
  • Share this article on whatsapp

In 2014, the Supreme Court ruled in the Dipanwita Roy case that DNA testing of the child is the surest way to prove a married woman’s infidelity. It sent shockwaves. Lawyers, academicians and activists working in the field of gender, law and women’s rights expressed concern that the ruling would open the floodgates of matrimonial litigation, and give suspicion-ridden men yet another weapon against their female partners.

subscription-appeal-image

Support Independent Media

The media must be free and fair, uninfluenced by corporate or state interests. That's why you, the public, need to pay to keep news free.

Contribute

However, a June 12 Kerala High Court judgement in the case of EC Ramakrishnan v Mrinalini shows how to do justice in the wake of the binding apex court ruling, and allays some fears. The judgement not only does justice to the wife, but also takes due care of the interests of the children born from the marriage.

The case arose out of 77-year-old Ramakrishnan’s divorce petition against his 68-year-old wife Mrinalini on grounds of adultery, after three decades of marriage. Apparently, his wife told him that none of the three children they had from the marriage were fathered by him, and that she had been in an adulterous relationship with another man. Ramakrishnan filed a civil suit in the family court, contending that his children undergo a DNA test which would prove that he wasn’t their father.

The family court declined to grant his plea, upon which he appealed to the High Court.

Children’s reputation and privacy is paramount

At the outset, the High Court said that there can’t be a blanket application of the Supreme Court’s 2014 ruling in the Dipanwita Roy case, because it would be patently unfair to draw and adverse inference against the wife just because she refused to undergo a DNA test. It is worth noting the facts in the Dipanwita Roy case—the husband had wanted a DNA test, not because he wanted to prove (or disprove) the child’s progeny, but to prove his wife’s alleged infidelity. The apex court judges must have been aware of the pitfalls of allowing such a test, but that did not deter them from ruling as they did.

The Kerala High Court, on the other hand, was cognizant of blindly following the precedent laid down by the Supreme Court. Quite astutely, it noted: “The case projected by the petitioner seems to be that if the DNA test proves that the petitioner is not the biological father of the said three children, the corollary is that the wife committed infidelity and there is adultery”. The court then rejected this contention of the petitioner.

Moreover, the bench of Justices V Chitambaresh and KP Jyothindranath also showed that the plight of the children could not be ignored. The court must be alive to the fact that major children would suffer irreparable ignominy if they were proved to be illegitimate.

Hence, the court held that had the paternity of children been under dispute, the DNA test might have been the “only safe method”, but it was not so in the case.

The judges ruled that “in the case of three major children, after the passage of a long period of time, the DNA test cannot be used as a shortcut to establish infidelity that might have occurred decades ago”.

They also stated it would be illegal to compel the major children to provide blood samples in civil proceedings to which they were not parties.

The flaw in the apex court ruling

To appreciate what the High Court did right, it’s necessary to see where the apex court erred.

“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 (2001), 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 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 merely weighing possibilities.

The Karnataka High Court, in the 2014 case of Hanumappa v Yellaka, took a similar view.

Therefore, when the Dipanwita Roy case came before it, the apex court did not have to do much, except direct the husband to prove that he did not have physical access to his wife and hence could not have fathered the child. Unfortunately, without ascribing any reason, the judges turned the tables and put the burden on the wife to prove she had not been unfaithful.

This made it easy for husbands who suspect their wives of infidelity to drag them to court and, if they refused to agree to a DNA test, to find reasons for subjecting them to domestic violence and abuse.

The way forward

Veena Gowda, a senior lawyer practising family law in Mumbai, commended the Kerala High Court for not going on an erroneous path by sticking to the Dipanwita Roy precedent. She said that the judges did well by not allowing the DNA test to be used as an agni pariksha, for not drawing an adverse inference against the wife who refused to undergo the test, and for considering what effect it could have on children who are adults.

Talking to Newslaundry, she said, “The High Court has taken a progressive step by disallowing the DNA test not to strenuously protect the institution of marriage, but to allow the wife and major children to lead lives of dignity.”

However, that is not where courts in future should stop. She said courts should ensure women have equitable access to matrimonial property, in case their husbands want to leave them by doggedly insisting upon implementing a flawed apex court precedent.

subscription-appeal-image

Power NL-TNM Election Fund

General elections are around the corner, and Newslaundry and The News Minute have ambitious plans together to focus on the issues that really matter to the voter. From political funding to battleground states, media coverage to 10 years of Modi, choose a project you would like to support and power our journalism.

Ground reportage is central to public interest journalism. Only readers like you can make it possible. Will you?

Support now

You may also like