APARNA AJINKYA FIRODIA Vs. AJINKYA ARUN FIRODIA

JUDGEMENT

(1.) Leave granted.

(2.) Indian Law has proceeded on the assumption that parents are persons who beget a child or who assume the legal obligations of parenthood through formal adoption of child. Under the Indian legal spectrum, a husband is strongly presumed to be the father of a child born to his wife. Thus, there is a strong presumption regarding the paternity of a child. This presumption can be overcome only by evidence precluding any procreative role of the husband, such as by showing that the husband and wife had no access to each other at the relevant time of possible conception. In the absence of proof of non-access, the law considers the husband's paternity to be conclusively established if they cohabited when the child was likely to have been conceived. 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. The presumption protects social parentage over biological parentage. Scientific proof now makes it possible to know with virtual certainty whether a man is genetically related to a child. As a result, Courts are routinely confronted with husbands seeking to disavow their paternity based on newly acquired DNA evidence, notwithstanding them having long performed the social role of father to a child. The short question in the present appeal is as to how a Court can prevent the law 's tidy assumptions linking paternity with matrimony, from collapsing, particularly when parties are routinely attempting to dislodge such presumptions by employing modern genetic profiling techniques.

(3.) The present controversy emerges from an application (Exhibit 84/B) filed by the respondent-husband on 9/11/2020 before the Principal Judge Family Court, Pune, praying for a direction to subject Master Arjun, the second child born to the appellant-wife, during the subsistence of her marriage with the respondent, to deoxyribonucleic acid test ( "DNA test " for short), with a view to ascertain his paternity. The said application was filed by the respondent-husband in a petition for divorce filed by him under Ss. 13(1)(i) and (ia) of the Hindu Marriage Act, 1955, being Petition No. P.A. 639 of 2017. The same was allowed by the Family Court, Pune by an order dtd. 12/8/2021 and confirmed by the High Court of Judicature at Bombay by way of the impugned judgment dtd. 22/11/2021 in Civil Writ Petition No.7077 of 2021.