The Allahabad High Court recently observed that a DNA Test is the most legitimate and scientifically perfect means which the husband could use to establish their assertions of infidelity.
The Bench of Justice Vivek Agarwal further held:
“This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal.”
This judgement should be condemned by every woman of this country simply because it legitimises a method that is used only against one group of people, i.e. women.
In the Allahabad case, the husband wanted to test the DNA of the child in order to determine whether his wife had an affair with another man. So, a man has this tool to test adultery. What about a woman who suspects whether her husband is having an affair? This tool cannot be applied. Is it fair that to allow this tool to be used against one group, especially when the other group, men, are statistically more likely to have sex outside marriage? To me, the answer is no.
What happens if the test shows that the husband is indeed the father. And how many times does the husband get to demand such a test? Can he ask for a DNA test of each of his children? Doesn’t the woman have any dignity? Doesn’t the child have any rights?
In my opinion, this judgement is a form of violence against women. Allowing such a test assumes that the wife is a suspect or prima facie has done something wrong which she and the child must do the test to prove she’s not guilty of the affair. Till the test is conducted and the result is out (and even after that), her voice has no value and her words have no credibility.
I wonder how men would react if every night women were allowed to use litmus paper type tests on men’s genitals which would tell if he had sex. I bet most wouldn’t be too happy.
Let’s go back to the judgement and take a look at the words “unfaithful, adulterous or disloyal”. I think we as a society have evolved far enough to question whether these three words hold the simplistic meaning and association to sex they once did. Adultery has to do with voluntary sex. What if the child was born after a woman was raped or blackmailed? Just because a partner had sex once, does that mean they are unfaithful and disloyal?
Does one sexual act negate all the other loyal and faithful acts a wife does such as being there for the husband when he is ill, cooking for him, taking care of in-laws, sacrificing careers etc.? If a wife has done all this, does all this loyalty get demolished with one act of sex with another? The court should leave such definitions to be interpreted on a case to case basis and not use these words to brand women based on just one act of poor judgement (which most of the time is the case).
Adultery should be looked at through intent and not action. Was the wife deliberately trying to torture the husband with her act of adultery? Was the wife ignoring or mistreating the husband in favour of her lover? Does she have many sexual partners that can cause disease, emotional or physical harm to the husband? Or was the act of sex with another person an incident that happened as a result of poor judgment when the woman was alone and vulnerable due to her need for emotional and physical intimacy?
When should a DNA test be used? Only after the divorce proceedings in order to determine whether the husband should pay child support.
This ruling is absurd, albeit unsurprising because the courts are essentially male-dominated and there are very few judges who interpret the constitution in a progressive manner these days. This ruling puts DNA tests in the same misogynistic category that includes agnipariksha, cursing one’s womb (old testament numbers 5:11–31), etc. Even worse, this ruling could lead to similar unfair yardsticks and tests which will be used exclusively against other weaker groups such as backward communities and minorities.