Delhi High Court Rejects Husband's Petition To Prove Wife's Adultery
The Delhi High Court on Wednesday rejected a petition filed by a husband against his wife seeking the collection of blood samples of his wife to test the child’s paternity and to prove his allegations that the wife committed adultery. Claiming to be suffering from a male infertility condition called azoospermia, the husband sought to test the blood samples from his wife and minor child.
However, while rejecting the husband’s petition, a Division Bench consisting of Justice Rajiv Shakdher and Justice Amit Bansal observed that there is a presumption in favour of the legitimacy of the child since the child was born when the couple was living together as husband and wife. There is, the Court added, a presumption in favour of the legitimacy of the child as per Section 112 of The Indian Evidence Act, 1872.
“In this case, concededly, the disputants/couple lived together as husband and wife between 2008 and 2019. Given this undeniable fact, the presumption in favour of legitimacy under Section 112 of the Evidence Act springs forth qua the minor child. What also weighs against the appellant/husband is that he chose not to question the paternity of the child till November 2020, when an application was preferred to seek amendments in the divorce action instituted by him,” the Court said.
The husband earlier went to a family court and after the family court rejected the husband’s plea seeking direction for the blood samples of the wife and child, he approached the High Court. The husband had filed a petition seeking divorce on January 31, 2020, and in November of the same year, he sought change in his divorce petition to include information regarding his alleged azoospermia. It was after this that the husband moved another application seeking a blood test of the duo to ascertain the child’s paternity.
However, while addressing the husband’s claim that he has azoospermia, a medication condition indicating the absence of sperms in a person’s semen, the Court observed that there are numerous causes for azoospermia and some are treatable and some are possible to retrieve a live sperm. This can be used in assisted reproductive techniques such as IVF. The Court noting this said that it is in the realm of possibility that the child bears his paternity. The Bench further noted that it has to be decided after trial if the wife had been engaged in adultery as asserted by the husband. After hearing the case, the Court rejected the husband”s petition challenging the Family Court order.
