NEW DELHI: Though the legitimacy of a child born during marriage is presumed, Supreme Court Wednesday held that a child can be subjected to a paternity test in a matrimonial dispute in which a man has sought divorce on the ground of alleged unchaste character of his wife and has claimed that he is not the child’s biological father.A bench of Justices M M Sundresh and Prasanna B Varale rejected the plea of a woman who had opposed a paternity test of the child. She contended it was a settled principle of law that no party can be forced to undergo a DNA test, and the divorce plea of her husband should be decided without the paternity test.“If you are loyal, then why should you object to the test,” the bench asked. It upheld orders passed by a family court in Pune and Bombay HC directing a DNA test in divorce proceedings initiated by the husband, who submitted that the allegation of unchastity could be proved only through a DNA test.In this case, the husband had privately undergone a DNA test, which returned a negative result, thus showing that he was not the biological father of the child. Armed with the report, he filed a divorce petition and sought a court-directed DNA test to prove his allegations.“In the facts of the present case, to prove the prima facie case, the husband has placed on record DNA test carried out by the laboratory at Hyderabad which concludes that the probability of him being the father… is zero. Such DNA report obtained by the petitioner would form prima facie and sufficient material to conclude that the direction for undergoing DNA test can be issued. The second parameter is eminent need. The averments in the petition indicate that unchastity of the petitioner is the main ground pleaded by husband for getting divorce. A DNA test report would be of material bearing to prove the fact whether he is the father of son named in the petition.

Considering the allegations made in the petition, it would be difficult to get conclusive evidence to prove such allegation, except the DNA report,” the HC had said in its order.The apex court upheld the HC order, paving the way for a paternity test of the child.“The petition is based on the allegations of unchastity made against the wife. Result of DNA test would establish the allegations in the petition. Therefore, in my opinion, the husband satisfied the parameter of eminent need required to be taken into consideration by the Court while passing order of undergoing DNA test,” the high court had said.