Rajasthan High Court held that the courts have to be very careful and sensitive to the circumstances before passing orders for getting the DNA test conducted for establishment of paternity in a case. The court said that such a prayer ought not to be granted by the courts without considering all circumstances and looking at it from every angle as the way it could affect the lives of individuals cannot be denied.
However, relying on many Supreme Court judgments on the subject, the court did agree that application for seeking DNA test cannot be ousted merely because of presumption to be drawn under Section 112 of the Evidence Act. It found the reasoning adopted by the civil judge for rejection of the application for DNA test as incorrect.
Bench of Justice Sanjeev Prakash Sharma was hearing a petition whereby petitioner husband had challenged the order of a Civil Judge, rejecting his application for demanding DNA test to be conducted of the son born to his wife on the ground that he got sonography examination done of his wife during pregnancy from one Hospital in Ambattur, Chennai which reports that his wife was pregnant for 35 weeks and 06 days as on 13.9.2017 and accordingly he calculated the period of conceiving to be before the date when he got married on 5.2.2017. It was thus his submission before the court that his wife was pregnant prior to getting married and therefore, child born is not his child.
Respondent wife, on the other hand, had denied the averments made in the application while admitting that the marriage was performed on 5.2.2017. She had stated that the petitioner had caused her great physical and mental harassment and the application contains false averments.
It was her further assertion that the pregnancy and birth of her son were on account of marriage and relationship with her husband. She said there is no report from the hospital where she had been undertaking her treatment and the report obtained from an alleged hospital in Ambattur, Chennai is fictitious report. She also said that if the petitioner wants, he can get DNA test done and she does not have any objection on that count.
Trial court had rejected the application demanding the DNA test. It had observed that as the petitioner was living as husband with his wife during the period of pregnancy and the marriage is still subsisting, child born from his wife would be presumed to be his son in terms of Sec.112 of the Indian Evidence and there is no reason to call for DNA test of child.
Direction for DNA Testing If Test of 'Eminent Need' Satisfied
Court relied on many cases of Apex Court like Goutam Kundu v. State of West Bengal (1993) 3 SCC, Sharda v. Dharmpal (2003) 4 SCC, Ramkanya Bai v. Bharatram (2010) 1 SCC besides Narayan Dutt Tiwari v. Rohit Shekhar and anr. 2012 (12) SCC, wherein apex court had considered subject matter at length.
Amongst other observations on the matter, the top court had observed that a direction for DNA testing can be issued only after the test of 'eminent need' is satisfied.
Court had also made observations in case of apparent conflict between "right to privacy" and "ascertainment of truth":
"In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, 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 is eminently needed. DNA 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. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of `eminent need' whether it is not possible for the court to reach the truth without use of such test."
It had also had a guarded approach towards protection of legitimacy of the child:
"In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception."
Court also relied on decision of Supreme Court in Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and anr AIR 2014 SC, wherein it was held that "when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former."
DNA Test Cannot Be Allowed At This Stage
Although court did consider that DNA test could be allowed to reach the truth after considering all the circumstances in a case and after due compliance with necessary directions as laid down by Apex Court from time to time and also found reasoning of civil judge in disallowing application for same as incorrect, however, it said that it cannot allow DNA test at this stage when petitioner has yet to prove his assertions with regard to the report submitted by him relating to a certain Hospital in Ambattur, Chennai where he allegedly got his wife's sonography conducted.
Court said that the petitioner has not even proved its authenticity in the court. His wife has on the other side denied such a test having been conducted. The evidence has yet to be recorded by any expert in relation to the period of conceiving of a child.
"Thus it would not be appropriate to allow a DNA test to be conducted at the stage merely on the basis of bland statement of the husband making allegations without appropriate legal evidence on record as has been noted by the Apex Court in all the aforesaid judgments. The courts cannot order blood test as a matter of course. The husband has to establish beyond reasonable doubt about his non-excess to his wife during the entire period. The court has to be very careful and sensitive to the circumstance before passing orders for getting DNA test conducted."
No Act in India to Address the Issue
Court said that in UK, the 2006 Human Tissue Act has been enforced which declares it illegal to take, store or use human tissue without consent. Unfortunately, there is no law in India by legislature except some judgments. However, they too do not examine the rights of a child whose parents may casually get his DNA test done which may bastardize his existence in the society.
It said that the law makers require to think on the said aspect however till it is done, it holds that no guardian or parent would be authorized to get DNA test conducted of a minor without seeking prior permission of the court.
It also laid down certain steps before giving a nod to such application. It said that on any such application, the court will first examine:
Petitioner was represented by advocate Rajneesh Gupta in the case.
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