Children's Right Not To Have Their Legitimacy Questioned Frivolously Part Of Their Privacy Right : Supreme Court On Power To Order 'DNA Test'

The Supreme Court observed that 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 Section 112 of the Evidence Act."Children have the right not to have their legitimacy questioned frivolously before a Court of Law. This is an essential attribute of the right to privacy", the bench of Justices V Ramasubramanian and B V Nagarathna observed.The court also observed that it is not prudent to draw an adverse inference under Section 114 of the Evidence Act, in every case where a parent refuses to subject the child to a DNA test.In this case, a husband filed an application seeking a direction to subject second child born to the wife, during the subsistence of her marriage with the respondent, to deoxyribonucleic acid test (“DNA test”), with a view to ascertain his paternity. This application was filed in a divorce proceedings. The Family Court allowed it and the said order was affirmed by the Bombay High Court.While setting aside the order, the Apex Court bench made the following observations:DNA Tests : Principles Summarizedi. That 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 Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 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 of a child is not directly in issue, but is merely collateral to the proceeding.iv. Merely because either of the parties have 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.Children have the right not to have their legitimacy questioned frivolously before a Court of Law.Children have the right not to have their legitimacy questioned frivolously before a Court of Law. This is an essential attribute of the right to privacy. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses whether an adverse presumption can be drawn in the nature of Illustration (h) to Section 114, as to the wife’s adulterous conduct when she refuses to comply with a direction for the child to undergo a DNA test.The concept of privacy for a child may not be equivalent to that of an adult. The concept of privacy for a child may not be equivalent to that of an adult. However, the evolving capacity of children has been recognised and the Convention acknowledges the control that individuals, including children, have over their own personal boundaries and the means by which they define who they are in relation to other people. Children are not to be deprived of this entitlement to influence and understand their sense of self simply by virtue of being children. Further, Article 8 of the Convention provides children with an express right to preserve their identity. Details of parentage are an attribute of a child’s identity. Therefore, long-accepted notions about a child’s parentage must not be frivolously challenged before Courts of Law.Finding as to illegitimacy, if revealed in a DNA test, would, at the very least adversely affect the child psychologically.It is undeniable that a finding as to illegitimacy, if revealed in a DNA test, would, at the very least adversely affect the child psychologically. It can cause not only confusion in the mind of the child but a quest to find out who the real father is and a mixed feeling towards a person who may have nurtured the child but is not the biological father. Not knowing who one’s father is creates a mental trauma in a child. One can imagine, if, after ...

Children's Right Not To Have Their Legitimacy Questioned Frivolously Part Of Their Privacy Right : Supreme Court On Power To Order 'DNA Test'

Ashok KM

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