Case Comment: Aparna Ajinkya Firodia vs Ajinkya Arun Firodia

Case Comment: Aparna Ajinkya Firodia vs Ajinkya Arun Firodia

27 Apr, 2023

Case Comment: Aparna Ajinkya Firodia vs Ajinkya Arun Firodia

Author – Anjali Jain, Student at Government Law College, Ajmer

Citation : 2023 LiveLaw (SC) 122
Bench: V. Ramasubramanian, B.V. Nagarathn

I. Abstract

Scientific proof makes it possible to know with virtual certainty whether a man/woman is genetically related to a child or not. As a result, Courts are routinely confronted with husbands or wives seeking to disavow their paternity based on newly acquired DNA evidence or asking to grant the permission to accept DNA evidences in civil cases especially family law cases. This disrupts the presumption of social parentage over biological parentage established by law. It also hampers the mental state of the child, who is treated as a material to prove the illegitimacy or infidelity of one partner to another. The parents in the dispute may unintentionally deprive the children of their rights. In the said case, the respondent demands the DNA test of his child to support the allegations of infidelity against the wife. The appellant on other end opposes the application filed by the respondent, seeking a direction to conduct DNA test of child. The contention of the appellant is that the respondent had not made out a prima-facie case requiring the Court to exercise its discretion to direct DNA test to be conducted as prayed for. This article analysis the judgment of the court considering the effect of the Illustration (h) of Section 114 and development of jurisprudence for DNA test concerning the children’s right of privacy.

II.               Keywords

DNA Test, Section 112 of Indian Evidence Act 1872, Section 114 illustration (h) of Indian Evidence Act 1872, Children right of privacy, Infidelity.

III.           Introduction

Indian law has operated under the premise that parents are people who conceive a child or who legally adopt a kid, assuming the responsibilities of parenthood. A spouse is almost always assumed to be the father of a child born to his wife under Indian law. As a result, the paternity of a kid is strongly presumed. Only proof disproving the husband’s procreative role, such as demonstrating that the couple was not in close proximity to one another at the crucial moment of a potential conception, can disprove this premise. If the couple cohabited when the kid was likely to have been born, the law considers the husband’s paternity to have been decisively proven even in the lack of evidence of non-access. 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. This presumption protects social parentage over biological parentage. In the said case, the husband (“the respondent”) filed an application seeking a direction to subject second child born to his wife, during the subsistence of her marriage with the respondent, to deoxyribonucleic acid test (“DNA test”), with a view to ascertain his paternity. Hence, challenging the presumption of conclusive proof of legitimacy under section 112 of Indian Evidence Act 1872, (hereinafter referred as “the Evidence Act”). The case takes a twist when the wife (“the appellant”) denies the permission of DNA test for the child. From the conduct of the appellant an adverse inference can be drawn under section 114 illustrations (h) of the Evidence Act. Although the court, disregards the adverse inference of section 114 stating that it as non prudent to use the adverse inference, in every case where a parent refuse to subject the child to DNA Test they can be several reasons for doing so. But seeing to the facts of the case of infidelity of wife against the husband, the adverse inference might be true. So, the real question before the court is not the relevance of DNA test of child when the same is not the direct party to dispute, as the jurisprudence have been developed over time. But the unneeded advantages the parents seek in matrimonial cases through loops in the law?

IV.           Facts of the Case

1.      On 23rd November, 2005, the appellant and the respondent were united in marriage according to Hindu customs and practices in Pune. Their first child arrived on 21st December, 2009, followed by the birth of their second son, Arjun Firodia, on 17th July, 2013, while their marriage was still ongoing.

2.      The respondent, inter alia, alleged that the appellant-wife was in an adulterous relationship with 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. That on being confronted about the same the appellant admitted to the adulterous relationship with Kshitij Bafna.

3.      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 and a petition seeking custody of their two children, against the appellant-wife, before the Family Court, Pune.

4. On 9th November, 2020, the respondent filed an application, before the Family Court, Pune seeking a direction to subject Arjun, 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, As he doubted that the second child Arjun was born out of an adulterous relationship of the appellant.

5. Due to the appellant’s unwillingness to accept the truth, the respondent decided to further investigate the issue of Arjun’s paternity. Therefore, a DNA test was conducted at a private laboratory called DNA Labs India. The test report, dated 24th November 2016, revealed that “The alleged father lacks genetic markers that must be contributed to the child by the biological father. The probability of paternity is 0%”. The respondent was convinced that Arjun was born as a result of the appellant’s extramarital relationship. As a result, in order to prove the appellant’s infidelity as a ground for divorce, the respondent wanted to conduct a DNA test that would confirm he was not Arjun’s biological father.

6. The Family Court, Pune, allowed the application filed by the respondent seeking DNA test of Arjun 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 Evidence Act.

 7. The appellant submitted an affidavit in response to the respondent’s application requesting a direction to conduct a DNA test of Arjun. The appellant opposed the application and argued that the respondent had not presented enough evidence to support the need for the court to order a DNA test. The appellant contended that there was no prima facie case that would require the court to exercise its discretion to order the DNA test as requested by the respondent.

8.      The Family Court on the basis of the fact held the respondent had made out a prima-facie case justifying the Court’s exercise of discretionary power to direct conducting DNA Test and the DNA Test conducted at the private laboratory can be considered as evidence. It further held that if the appellant In case, she declines to comply with the direction issued by the Court, the allegations would be determined by the Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, particularly, in terms of illustration (h) thereof.

    9. If she refuses to comply with the court’s direction, the court will determine the allegations by drawing a presumption as specified in Section 114 of the Indian Evidence Act, particularly in illustration (h) of the Act.

  10.The appellant was dissatisfied with the Family Court’s order dated 12th August 2021 and filed a writ petition, Civil Writ Petition No.7707 of 2021, before the High Court of Judicature at Bombay, challenging it. The appellant argued that a strong prima facie case is necessary for directing DNA profiling and that there was no evidence to support the respondent’s request for a DNA test. However, the High Court dismissed the writ petition on 22nd November 2021 and upheld the Family Court’s order. The appellant is appealing against the Family Court’s order and the High Court’s judgment

V.               Issues

  • Whether, the Family Court, Pune and the High Court of Judicature at Bombay, have rightly appreciated Section 112 of the Evidence Act in directing that a DNA test of the child be conducted?
  • Whether, on non-compliance on the part of the appellant of the direction to subject the child to DNA test, allegations of adultery as against her could be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114?

VI.           Judgment

The Family Court as well as the High Court was wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed. However, this shall not preclude the respondent-husband from leading any other evidence to establish the allegations made by him against the appellant in the petition for divorce.

VII.        Analysis

Upon analysis of the given judgment, we can see many angles in which the case can be interpreted. Such as:

Should social parentage be given more weight age than biological parentage?

Let us presume that the paternity of children can be corollary to the marital relation of child, Hence, the question of how the baby was conceive; is he genetically related, holds value when the martial relationships are not good or allegation of adultery have been imposed. Further, to conclusively presume that a child born out subsistence marriage may not be correct in some cases.

This dislodges the presumption of section 112 of the Evidence Act. Although, the court requires a strong and cogent evidence to rebuttal this presumption. In Sugandha Kumar v. Vijay Kumar, the court laid the principals for the conduct of DNA Test. It stated that to establish adultery DNA test is scientific and authentic evidence but the court should also be mindful of consequences that may follow. Following this premise DNA Test is to determine the legitimacy of the child to prove the adultery of appellant and so the principle behind section 112 of the Evidence act cannot come in the way for petitioner seeking a direction to undergo a DNA test.

Now, keeping in line with the principles lay down and ensuring the consequences whether it is possible for the court to reach the truth without the use of such test to avoid such consequences, should be considering. It is observed that if the party has strong prima facie case those questions the paternity to prove infidelity such test will have the bearing on the judgment. Although in the instant case the courts weigh down the relevance of test from the perspective of children right over martial disputes. Hence, gives weight age to social parenting as established by law.

The next aspect of the matter that requires to be considered does the refusal of appellant under section 114 draws an adverse inference for her case?

The refusal of the wife (“the appellant”) to comply with a court direction for her child to undergo a DNA test may lead to an adverse presumption being drawn, as stated in Illustration (h) to Section 114. This section allows the court to presume the existence of any fact it deems likely to have happened based on the common course of natural events, human conduct, and public and private business in the particular case. There are two main types of presumptions: presumption of fact and presumption of law.

Furthermore, if a man refuses to answer a question that he is not compelled to answer by law, the court may presume that the answer, if given, would not be unfavorable to him. The questions that one is not legally obligated to answer are addressed in Sections 121-129 of the Evidence Act. Refusal to answer a question can typically be used as a legitimate ground for an unfavorable inference against the person who refuses to answer. Additionally, Section 148(4) of the Evidence Act permits the court to draw an inference from such refusal if a witness refuses to answer a question. The use of the word “may” implies that the court has the option to draw such an inference, and is not necessarily obligated to do so. The court must exercise its discretion based on the facts of each individual case. In order to reach a conclusion, the court may rely on a factual presumption unless it is disproved, dispelled, or rebutted. However, Illustration (h) to Section 114 provides the court with sufficient discretionary power to draw its own conclusion.The presumption under the section is discretionary and not mandatory. The instant case gives evidence in the form of non-denial of the fact that the child might be illegitimate child of the respondent. To support and refute this argument conduct of DNA test is necessary. Further, keeping in mind the right of privacy child and the right to know the truth, DNA test becomes necessary. Hence, weighing the right to know the truth over right of privacy of child court should favor the respondent’s contention. Although, court has kept the perspective of the children over all other aspects of the facts presented.

VIII.    Conclusion

Therefore, the Family Court as well as the High Court was wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed. However, this shall not preclude the respondent-husband from leading any other evidence to establish the allegations made by him against the appellant in the petition for divorce.

IX.           References: