The Kerala High Court has held that a DNA test cannot be done to clear suspicion regarding paternity of a child in the absence of a specific denial regarding this issue. A bench of Justice A Badharudeen dismissed a man’s appeal against a family court’s decision which rejected his plea for a paternity test. He had challenged the claim of his wife that he was the father of the child. The wife objected to the petition and said that the man was disputing the child’s paternity only to avoid paying maintenance.
The family court judge had dismissed the man’s application where he said he did not have any access to his wife at the said time. It was also observed by the judge that earlier too he had filed a similar application seeking a DNA test. Thereafter, the wife resumed joint residence and accordingly, the said petition was withdrawn.
It was also noted by the family court that the only contention raised was that he had suspicion regarding the paternity and he did not have a consistent case denying the paternity of the child. Therefore, it was found by the court that the DNA test to rebut the presumption available under Section 112 of the Evidence Act could be available only in compelling circumstances and was not a device to clear suspicion regarding paternity.
The High Court noted that the question to be considered was whether a DNA test can be pressed in order to clear suspicion regarding the paternity of the child when there is no specific denial of paternity.
Section 112 of the Indian Evidence Act, 1972, provides that any person born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. “In fact, a DNA test is intended to rebut the ‘conclusive proof’ provided under Section 112 of the Evidence Act,” the Court said.
It held that merely because the parties have a dispute about paternity, it does not mean that the Court should direct a DNA or such other test to resolve the controversy. In such circumstances, the parties should be directed to lead evidence to prove the dispute of paternity and only when the Court finds it impossible to draw an inference based on such evidence or the controversy cannot be resolved without a DNA test, it may direct a DNA test, not otherwise. So, only in rare and exceptional cases of a deserving nature, a DNA test or any other scientific test becomes indispensable to resolve the controversy, the Court observed.
“Scientific proof now makes it possible to know with virtual certainty whether a man is genetically related to a child. As a result, Courts are routinely confronted with husbands seeking to disavow their paternity based on newly acquired DNA evidence, notwithstanding them having long performed the social role of father to a child,” the Court said.
In Aparna Ajinkya Firodia vs Ajinkya Arun Firodia, the apex court laid down the circumstances under which DNA test of a minor child may be directed to be concluded and held. It said:
i. A DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. 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.
ii. DNA tests of children born during the subsistence of a valid marriage may be directed only when there is sufficient prima facie material to dislodge the presumption under S.112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under S.112 of the Evidence Act, a DNA test may not be directed.
iii. A Court would not be justified in mechanically directing a DNA test of a child in a case where the paternity is not directly in issue, but is merely collateral to the proceedings.
iv. Merely because either of the parties has disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test.
v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc.
In Pattu Rajan vs State of Tamil Nadu, the apex court considered the evidentiary value insofar as expert opinion under Section 45 of the Evidence Act, 1872, was concerned. It held that it cannot be forgotten that opinion evidence is advisory in nature and the Court was not bound by it. It held that it was the duty of an expert witness to assist the Court effectively by furnishing the relevant report based on his expertise along with his reasons so that the court may form its independent judgment.
In Goutam Kundu vs State of West Bengal, (1993), the Court observed that the Indian law leans towards legitimacy and that a direction for DNA test should be passed only after balancing the interests of the parties, including the rights of the child, and if such a test is eminently needed.
In Bhabani Prasad Jena, the Supreme Court emphasised that a direction to use DNA profiling technology to determine the paternity of a child is an extremely delicate and sensitive aspect. DNA profiling in a matter relating to paternity of a child should not be directed by the Court as a matter of course or in a routine manner, whenever such a request is made.
In Inayath Ali vs State of Telangana, the question before the apex court was whether a DNA test of two minor children could be ordered by a court with a view to facilitate proof of allegations under Sections 498A, 323, 354, 506 and 509 of the Indian Penal Code, 1860. The Court noted that the dispute was essentially one of dowry related offences, and that paternity of the children of the complainant was not directly related to the allegations.
In Sharda vs Dharmpal (2003), a three-judge bench of the top court was concerned whether a party to the divorce proceedings can be compelled to a medical examination. That case arose out of an application for divorce by the husband against the wife under Section 13(1)(iii) of the Hindu Marriage Act, 1955. The husband claimed divorce on the ground that his wife has been incurably of unsound mind or suffering from a mental disorder. The Court observed: “Goutam Kundu is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regards mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child.”
In Ramkanya Bai vs Bharatra (2009) decided by the Supreme Court bench, a High Court order directing DNA of the child at the instance of the husband was set aside. It was held that the High Court was not justified in allowing the application for grant of DNA of the child on the ground that there would be the possibility of a reunion of the parties if such a test was conducted.
—By Shivam Sharma and India Legal Bureau
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