Ajinkya alleged, Aparna was in an adulterous relationship with Kshitij Bafna. He found certain intimate messages. Ajinkya caused a DNA test at DNA Labs India. DNA Test Report indicated, “probability of paternity is 0%.”

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Section 112 of The Indian Evidence Act, 1872 is based on presumption of public morality and public policy [Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454].

A birth during continuance of marriage is ‘conclusive proof’ of legitimacy unless ‘non-access’ is proved; ‘access’ or ‘non-access’ does not mean actual co-habitation but means ‘existence’ or ‘non-existence’ of opportunities for sexual relationship. If Husband has had ‘access’, adultery on Wife’s part will not justify a finding of illegitimacy. Ronobroto in Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365 had made a specific plea of ‘non-access’. Court specifically recorded a finding, it would have been impossible to prove allegations of adultery/infidelity in absence of a DNA test. Dipanwita Roy is of no assistance. In present case, no plea of ‘non-access’ has been raised. Further, this is not a case where a DNA test would be the only possible way to ascertain truth regarding adultery. DNA test of a minor child is not to be ordered routinely. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions. Court would not be justified in mechanically directing a DNA test of a child, in a case where paternity is not directly in issue. The issue of paternity of Master Arjun is alien to the issue of adultery on part of Aparna.

Rs. 1,00,000/- [Rupees One Lakh] is payable by Ajinkya to Aparna.

– Hon’ble Justice B.V. Nagarathna, Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, [Special Leave Petition No. 9855 of 2022].