India court rules DNA can be tested to prove women's infidelity

by admin 24. October 2014 22:17

 

India's top court on Wednesday said DNA tests on a child can be ordered to prove the infidelity of its mother, which rights groups say will set a dangerous precedent in the country.

Activists and some political leaders warned this week that the judgment violates the privacy of women and children, and could harm the reputation of hundreds of innocent women. They also said they were concerned it would increase harassment of women.

"On the face of it, a DNA test would seem to be an easy solution but this would set a dangerous precedent since adultery is used by many men to justify domestic violence and divorce," said Astrid Lobo Gajiwala, a Catholic woman theologian and medical doctor based in Mumbai.

Gajiwala said that it would appear the ethical interests of the child are being sacrificed to further the interests of the husband.

"The child's legitimacy is at stake and the outcome of the test can affect its entire future. [Furthermore], the privacy of the child is being invaded," she told ucanews.com.

The court's verdict came in a family dispute when a husband said the child was that of another man and sought divorce on the grounds of adultery. The case involving Dipanwita Roy of Kolkata and her husband Ronobroto Roy came to the Supreme Court when the wife challenged a Kolkata High Court's order for a DNA test.

In allowing DNA testing, the two-judge bench wrote, "The interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue.”

The ruling continued: “Despite the consequences of a DNA test, it was permissible for a court to allow it, if it was eminently needed, after balancing the interests of the parties."

Such a judgment violates human rights and shows women in a poor light, said Shanimol Usman, secretary of the All India Congress Committee, a prominent political party.

Usman, 47, a practicing lawyer based in Kerala, said the ruling would have "far reaching consequence of damaging the social and moral values of [Indian] society".

"Ordering a DNA test against a married woman will put her under the shadow of suspicion. It's going to hurt women forever," said Usman, before asking who will compensate the woman for reputational damages if the test proves her innocent.

Shabnam Hashmi, a woman rights activist based in Delhi, expressed similar sentiments, saying the ruling could become a dangerous tool to harass and intimidate wives.

"I question the language itself. What is the definition of infidelity? I think we should come out of such archaic attitudes," she said. "I hope the woman appeals."

A Supreme Court verdict cannot be appealed, but lawyers are permitted to file petitions for review. They are rarely, however, considered. 

Supreme Court lawyer MP Raju told ucanews.com the existing Indian Evidence Act allows the court to presume that a child born to a husband and wife is their legitimate child.

The law disallowed ordinary evidence to prove the legitimacy of the child because of the sensitivity involving the family and the child, but allowed the “best evidence”.

Until now, he said, the best evidence to prove a child was born outside wedlock was to prove parents' "non-access" to each other at any time the child could have been conceived.

"But in the past decade we have also been seeing the court moving progressively toward accepting DNA testing" in paternity and inheritance disputes, he said. The latest verdict could be seen as a natural progression, he added.

However, Raju said there should be "restrictions and regulations" in implementing the judgment "to safeguard the interest of women and children, two of society's most vulnerable groups.”

Kochi, UCA News

 

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