Supreme Court: Deciding the issue of proving infidelity of a spouse, the bench of J.S. Khehar and R.K. Agrawal, JJ held that DNA test can be conducted to determine the veracity of the allegations of adultery. However, considering the fact that the said test will automatically determine the issue of legitimacy, the Court held that the presumption of legitimacy as given under Section 112 of the Evidence Act, 1872 will not be disturbed and that if the direction to hold such a test can be avoided, it should be so avoided as the legitimacy of the child should not be put to peril.
In the present case, the husband has sought divorce from his wife due to alleged infedility by her and had also named the person has fathered the child born to his wife, thereby making an application for DNA test to prove the paternity of the child in order to prove the alleged infidelity. The Court, hence explained the importance of DNA test by stating that DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. The Court also said that DNA test should also simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the husband, and to establish that she had not been unfaithful, adulterous or disloyal.
The Court, hence, held that the wife shall be given the liberty to comply with or disregard the order of DNA test and in case, she declines to undergo the said test, the Court shall draw presumption as per Illustration (h) of Section 114 of the Evidence Act, 1872. Dipanwita Roy v. Ronobroto Roy, Civil Appeal No. 9744 of 2014, decided on 15.10.2014