DNA Test Of Daughter To Determine Paternity Cannot Be Ordered Without Consent After She Becomes Major And Marries: Gujarat High Court
The Gujarat High Court set aside a Family Court direction for DNA testing in a maintenance suit, holding that the order was passed routinely, without the daughter’s consent, and despite the maintenance claim having become redundant after she became a major and married.
Justice J.C. Doshi, Gujarat High Court
The Gujarat High Court has held that a daughter cannot be subjected to a DNA test for the determination of paternity without her consent after she has become a major and married, especially when the direction arises in a maintenance suit where the claim has become redundant, and the test would directly affect her privacy and societal status.
The Court was hearing a petition challenging a Family Court order which had allowed an application seeking a blood sample for DNA examination to determine paternity in a suit filed under the Hindu Adoption and Maintenance Act, 1956, for maintenance of a woman and her daughter.
A Bench of Justice J. C. Doshi, while noting that the plaintiff had not first led evidence to prove her alleged marriage with the defendant, observed: “In the present case, it cannot be overlooked that the application to subject the parties, including the minor (now major) Respondent No. 2, to a DNA test arises in a suit for maintenance under the Hindu Adoption and Maintenance Act, in which Respondent No. 2 has since become a major and has married, lost her right to get maintenance.”
The Bench further added: “The plaintiff No.1 had not adduced any evidence of her marriage to the defendant prior to filing the application. Apt to note that the direction for the DNA test was made without obtaining the consent of Respondent No. 2. In view of that, her right to privacy is accordingly under threat, having been ordered without her consent. It is thus, observed that such a direction infringes the right to privacy of the individual concerned (respondent No.2) and may carry significant societal consequences.”
Advocate R.D. Dave appeared for the petitioner, while Advocate Nirav Thakkar appeared for the respondents.
Background
The suit was originally filed for maintenance for the plaintiff and her minor daughter. During the proceedings, the plaintiff sought a direction that the defendant undergo a blood test for DNA examination to determine the daughter’s paternity.
The Family Court allowed the application and directed the defendant to appear before a laboratory for providing a blood sample, with a further direction that an adverse inference would be drawn if he failed to appear.
The defendant challenged the order, arguing that the daughter was now over 30 years old, married and settled abroad, and therefore no longer entitled to claim maintenance. It was also argued that the plaintiff had not proved the factum of marriage before seeking DNA testing to establish paternity.
The respondents, on the other hand, relied on Section 112 of the Indian Evidence Act and contended that DNA testing was a scientifically accurate method to determine paternity.
Court’s Observations
The Court relied on Ashok Kumar v. Raj Gupta (2022) and K.S. Puttaswamy v. Union of India (2019) to emphasise that DNA testing involves privacy and bodily autonomy concerns.
The Court noted: “As per the judgment of Ashok Kumar (supra), DNA is unique to an individual and can be used to establish identity, trace familial linkage, and reveal sensitive health information, and that whether a person may be compelled to provide a DNA sample must be examined applying the test of proportionality laid down by the Hon’ble Apex Court in case of K.S Puttaswamy v. Union of India, 2019 (1) SCC 1, in which the right to privacy was declared to be a constitutionally protected right in India.”
The Court further observed that the Family Court had not applied these safeguards before directing DNA testing.
The Court found it significant that the DNA-test direction was issued when the daughter was a minor, without obtaining her consent, and that she had not appeared before the Court after becoming a major to seek such determination herself.
The Court stated: “At this juncture, this Court notes that at the time of issuance of direction for the DNA test was passed, Respondent No. 2 was a minor, and that her consent to the test was never obtained. It was plaintiff No.1, her mother, who approached the Court seeking a determination of Respondent No. 2's paternity; Respondent No. 2, now a major, has at no stage herself appeared before the Court to seek that her paternity be determined by way of a DNA test.”
The Court also noted that the suit was for maintenance, and the daughter had since become a major and married. Therefore, the exercise of determining paternity for her maintenance claim had become redundant.
The Court held: “On the question of timing, apposite to observe that plaintiff No.1 was first required to prove her marriage with the defendant before raising the issue of the paternity of Respondent No. 2. Further that the suit proceedings were required to have concluded by December 1998. Instead, the application concerning paternity was filed only in 2010 without plaintiff No.1 having entered into the witness box or to lead any other evidence.”
“Nonetheless, the exercise to decide paterntiy of respondent No.2 became redundant as she is now major and married daughter and she now cannot claim maintenance from her father. Moreover, now practically, no DNA test can be ordered without taking consent of respondent No.2, as result of DNA test practically has direct bearing upon the respondent No.2 to societal status.”
Conclusion
The High Court allowed the petition, quashed the Family Court’s order directing DNA testing, and dismissed the DNA-test application. It directed the Family Court to proceed with the suit, while clarifying that it had expressed no opinion on the merits of the dispute or on the issue of paternity.
Cause Title: YSC v. MY