GENETIC TESTING IN MATRIMONIAL DISPUTES: JUSTICE AT AN EXPENSE OF CHILD’S PRIVACY?

Abstract

Courts in India have time and again embraced DNA, a genetic technique as admissible in evidence as a perfect science[1], stating it to be scientifically correct and reliable[2]. In matrimonial cases, peculiarly during testing of presumption under Section 112 of the Indian Evidence Act, judiciary has gone to the extent of accepting DNA testing as “most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity”[3]. Albeit, one of the underlying issues that emerge while enduring DNA testing is its impact on right of privacy of a child involved. While acknowledging it to be “extremely delicate and sensitive aspect when it gets down to human relationship”[4], courts often find themselves with dilemma of striking a balance between victim’s right to fair trial and preserving child’s right of individual privacy.[5] The present research paper delves into instances where a child’s legitimacy is questioned, and attempts to critically analyse the recent developments in judicial appreciation of genetic evidence in matrimonial cases in three parts: Part I: Presumption v. Proof, mapping the legal roots determining legitimacy; followed by Part II: Child’s Privacy, a critique of protection of personal liberty of child in a matrimonial dispute and Part III: Practice, an analysis of recent Supreme Court and High Court rulings on child’s genetic testing showcasing contemporary appreciation and judicial gatekeeping whilst balancing the rights of individuals involved.