DNA tests cannot be ordered to prove ‘bald allegations’ of infidelity: Delhi HC summarizes principles for ordering DNA test [Read Judgment]

In an elaborate judgment which discusses principles and precedents governing consideration of application seeking direction for a DNA test, a Division Bench of Delhi High Court has held that the strong presumption under Section 112 of the Indian Evidence Act of legitimacy of a child born during marriage can only be rebutted by “strong, clear, satisfying and conclusive” evidence of “non-access”.The Bench comprising of Justices Gita Mittal and I.S.Mehta also observed that DNA test cannot be ordered to gather evidence on behalf of a party who has made a bald allegations of infidelity.The Family court, upon application by Husband, had allowed an application seeking DNA test of the child. On Appeal by wife, the Delhi High Court, setting aside the order of Family court, observed that, the Husband has made repeated admissions of paternity in his pleadings, affidavit and his statement on oath in support on judicial record and also in public records, which militate against a prima facie case in his favour.This judgment of Delhi High Court exhaustively deals with the case-laws on the subject. The Court has summarized principles governing the consideration of applications seeking DNA tests.WHEN TO MAKE DIRECTION FOR COMPELLING A MEDICAL EXAMINATION OR A DNA TEST TO ESTABLISH ANY FACT The Court observed as follows Applications for directions to the other party to appear or produce off springs or siblings for DNA testing are made by parties seeking to establish, either, the factum of the relationship, or, their challenge to the relationship. It could be by a person claiming parentage or by a person challenging paternity of another the court in an appropriate case, can direct medical examination of a party to matrimonial litigation as well provided that the applicant seeking such examination has a “strong prima facie” case and has placed “substantial material” on the court record in support of his/her case. (AIR 2003 SC 3450, Sharda v. Dharampal) The presumption of legitimacy thus cannot be disturbed by “slender” materials under “compulsive and clinching” facts are brought to shake the presumption and call for a DNA examination. Proof of non-access was essential ((2005) 4 SCC 449 Sh. Banarasi Dass v. Mrs. Teeku Datta) Conclusiveness of the presumption under Section 112 of the Indian Evidence Act, therefore, cannot be disturbed lightly. (AIR 2010 SC 2851, Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & Anr)STANDARD OF PROOF REQUIRED TO DISPLACE CONCLUSIVE PRESUMPTION Referring to Kamti Devi v. Poshi Ram (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors, the Court said: “The presumption under Section 112 of the Indian Evidence Act can be displaced only by such evidence which meets a standard higher than preponderance of probabilities, and not by a mere preponderance of probabilities. The strong presumption under Section 112 of the Indian Evidence Act of legitimacy of a child born during marriage therefore can only be rebutted by “strong, clear, satisfying and conclusive” evidence of “non-access”. ‘ACCESS AND NON-ACCESS’The Court observed: “Cohabitation of the parties is not an essential or only concomitant to establish “access”; that “unnatural conduct” of the party or the conduct at the time the child was conceived, personal hostility would be pertinent circumstances. Parties being “in touch with each other”, “residing for a short period in reasonable proximity” during the period when the child was conceived are also material circumstances. In fact, at the final consideration, the husband has to conclusively establish that there was no access or opportunity at all for a liaison with or sexual intercourse between the parties. As delineated in Kamti Devi, the husband who challenges paternity of a child born during the subsistence of the marriage, has to establish with convincing evidence “not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time”.”PRINCIPLES TO BE FOLLOWED WHILE CONSIDERING APPLICATION FOR DNA EXAMINATIONThe Court summarized the principles referring to precedents as follows. A rebuttable presumption of legitimacy is attached to a child born of a married woman during a subsistence of marriage or within 280 days of its severance (Ref.: Section 112 of the Indian Evidence Act; AIR 2001 SC 2226, Kamti Devi v. Poshi Ram – para 11; (2005) 4 SCC 449, Banarsi Dass v. Teeku Datta – para 10; AIR 2009 SC 3115, Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors. – para 10) The DNA test is not to be directed as a matter of routine. Such direction can be given only in deserving cases (Ref.: (2005) 4 SCC 449, Banarsi Dass v. Teeku Datta – para 14). The court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. (Ref.: AIR 2003 SC 3450, Sharda...

DNA tests cannot be ordered to prove ‘bald allegations’ of infidelity: Delhi HC summarizes principles for ordering DNA test [Read Judgment]

Ashok KM

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