The marriage between the parties was solemnized in 2010 and the boy was born in 2018. The wife left the husband's house in 2019.
In 2019, the DNA Paternity Test of the child was conducted sans taking the child or his mother (wife) into confidence, noted the court.
"The record clearly reveals that the petitioner- husband and the respondent-wife were living together during time of birth of the child (son), and thus, the husband was having access for cohabitation; thus, the question regarding presumption under Section 112 of the Indian Evidence does not even arise in the present case," the court observed.
Referring to the Apex Court's decision in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia which observed that "the Family Courts have power to order for DNA Test, but it should not be directed in a routine manner, without any justifiable reason for the same; the same should be done after duly complying with the principles of natural justice. The husband thus, cannot take undue advantage of the DNA Test so as to shirk away from his obligation."
The court further observed that any matrimonial dispute between the husband and wife pertaining to the child born from wedlock, cannot be used for their own benefit via DNA Paternity Test, among other things. "This court is quite conscious of the fact that any frivolous claim of the husband or wife would have much adverse effect on the mental health of the child; though the husband has a right to prove adultery on the strength of cogent evidence against his wife," said Justice Bhati.
