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
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 EXAMINATION
The Court summarized the principles referring to precedents as follows.
PRIMA FACIE CASE
The Court referred to AIR 1958 SC 79, Martin Burn Ltd. v. R.N. Banerjee, which had observed thus: “27. …A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co., Ltd. [(1952) Labour Appeal Cases 490].
HUSBAND ADMITTED ACCESS
In the instant case, child was born in October 2013 and the husband in his pleadings had submitted “from the start of the year 2013, even the access to cohabit was denied”- Referring to this statement, the Court observed: “ It needs no elaborate detailing or consideration of pleadings that “rare entity”, “pathetic”, “hardly cohabited”, “hardly” cannot be equated to the categorical assertion of no access which is required by law to displace the presumption under Section 112 of the Indian Evidence Act. Consequently it was not even the husband’s clear and unequivocal case in the divorce petition that he had no access to his wife at the time when the child of the parties could have been conceived.”
The Court further held: “‘H’ has failed to make out a prima facie case justifying an order for compelling Baby ‘X’ to give a sample for a DNA examination. The repeated admissions of paternity by ‘H’ in his pleadings, affidavit and his statement on oath in support on judicial record militate against a prima facie case in favour of ‘H’ for making the order prayed for. The husband ‘H’ has made admissions of paternity in public records of the Registrar of Births as well as bank record. No explanation was tendered before the ld. Family Court Judge or before us. The respondent no.1 has concealed material facts; is guilty of mis-statement before the Family Court and his conduct post-conception of the child do not support a prima facie case in his favour justifying the impugned order. The respondent no.1 has also not established imminent need for the order or that such order was at all necessary for a just decision of the case.”
CONSTITUTIONAL RIGHTS OF THE CHILD IN MATRIMONIAL LITIGATION SHOULD BE PROTECTED INDEPENDENTLY
Referring to “Guidelines of the Committee of Ministers of the Council of Europe on child – friendly justice”, the Court observed: “the court would be bound to appropriately appoint a guardian ad litem or an amicus curiae to ensure the interest of the child which has to include effective representation to him/her, depending on the facts and circumstances of the case”
DNA TESTS CANNOT BE ORDERED TO GATHER EVIDENCE FOR BALD ALLEGATIONS OF INFIDELITY
Negating the contention that DNA test is the only manner of establishing a plea of infidelity by one spouse against the other, the Court observed: “What if there were no child from the alleged infidelity or the extra marital affair of the wife? What about a case where the wife alleges infidelity against the husband, with or without there being a child from such relationship? The husband (or the wife) has to stand on his own feet and establish the allegedly infidelity as per law. Accepting the proposition urged by Mr. Gupta would in effect, tantamount to laying down the principle that a spouse had to merely make an allegation of infidelity (or mental illness or impotency), without anything more, and courts would have to mandatorily direct scientific (or medical) examination. Accepting the proposition urged by Mr. Gupta would in effect, tantamount to laying down the principle that a spouse had to merely make an allegation of infidelity (or mental illness or impotency), without anything more, and courts would have to mandatorily direct scientific (or medical) examination. It is a first principle of procedural law that a party alleging a fact, must prove it. Binding judicial precedents noted above have laid down that a party must establish a strong prima facie case before a court would make an order for the scientific (or medical) examination, especially of the intrusive kind as a DNA examination. The court cannot conduct a fishing or roving inquiry for a party and a DNA test cannot be ordered to gather evidence on behalf of a party who has made a bald allegation, without anything more.”
Read the Judgment here.