A few days before the celebration of the International Women’s Day, the Supreme Court of India came out with a remarkable verdict that not only bolstered the rights of the women but also that of their children .The landmark judgment was delivered in Aparna Ajinkya Firodia Vs Ajinkya Arun Firodia case, on February 20 this year.
The view of the honourable court was that the question as to whether a DNA test should be permitted on the child is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery.
Legal fallacy busted
There has been a legal fallacy since decades that if after the verdict of the court to conduct a DNA test the wife disregards the order, an adverse inference of presumption against the wife that the child was not born out of the wedlock will arise.
However, the two-judge Bench of Justice JJ Nagarathna and Justice V. Ramasubramanian made it clear that the presumption has nothing to do with, nor is in connection with conclusive proof of legitimacy, as both the concepts fall under different compartments.
The husband has to prove that he was not having access to the wife at the time when the child could have been begotten and he cannot enjoy the misconception of adverse presumption, which has nothing to do with conclusive proof of legitimacy. The apex court cleared that there are two fences, one outer and the other inner.
By-product of DNA test
When the husband convinces the court to order DNA test and successfully secures the order, then only he can jump to the inner fence of presumption by passing the outer fence. What comes out of a DNA test, as the main product, is the paternity of the child. Incidentally, the adulterous conduct of the wife also stands established, as a by-product, through the very same process. To say that the wife should allow the child to undergo the DNA test to enable the husband to have the benefit of both the product and the by-product or in the alternative the wife should allow the husband to have the benefit of the by-product, if she chooses not to subject the child to DNA test, was really to leave the choice between the devil and the deep sea to the wife.
Protecting child’s interest
But in her capacity as a mother and natural guardian, if the wife refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her. By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the wife may be rewarded, but not punished with an adverse inference by throwing the wife to Catch-22 situation.
Such judgments enhance the spirit of motherhood and to stop the misuse of legal provisions which are detrimental and purpose to the women at large. It will usher in a new era where the patriarchal presumption will be diffused.
