DNA test to determine paternity cannot be ordered on mere allegation of infidelity

Delhi High Court: A Division Bench of Gita Mittal and I.S. Mehta JJ. evaluated a plea of legitimacy of a child by the husband against the wife. The child was born in October 2013 and the husband contended that he did not have access to his wife since the beginning of the year 2013, whereas, the wife’s contention was that the DNA test of the child cannot be made on a bald allegation of infidelity. The case revolved around the rebuttable presumption of legitimacy attached to a child born of a married woman during subsistence of marriage or within 280 days of its severance.

The High Court found from the pleadings that the husband had made categorical assertions to the paternity of the child in public records and before the family court. It is only later in the pleadings that the husband had made an equivocal/unclear allegation of infidelity. The court held such an allegation alone could not call in question the legitimacy of the child. The Court held that the standard of proof required to satisfy Section 112 of the Evidence Act, was very high and that DNA test could not be ordered on a mere allegation by one of the spouses.

The Court then enlisted established principles to be kept in a judicial mind while deciding with such cases: –

DNA Testing

  • 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. (Section 112 of the Evidence Act; Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 para 11; Banarsi Dass v. Teeku Datta, (2005) 4 SCC 449 para 10; Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 para 10)
  • The DNA test is not to be directed as a matter of routine. Such direction can be given only in deserving cases. (Banarsi Dass v. Teeku Datta, (2005) 4 SCC 449 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. (Sharda v. Dharampal, (2003) 4 SCC 493 para 80; Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633)
  • There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418)
  • The court would exercise discretion, only after balancing the interests of the parties and on consideration as to whether for a just decision in the matter the DNA test is imminently needed i.e. as to whether it is not possible for the court to reach the truth without use of such test. For so concluding, the court has to consider materials placed by both parties and the test shall not be ordered in routine for a roving enquiry.

Access

  • “Access” and “non-access” mean the existence or non existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”. (Karapaya Servai v. Mayandi, AIR 1934 PC 49; Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418 para 24)

Burden of legitimacy

  • In a civilised society it is imperative to presume the legitimacy of a child born during continuation of a valid marriage and whose parents had “access” to each other. (Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 para 42)
  • Burden of proving illegitimacy is on the person who makes such allegation. (Banarasi Dass v. Teeku Datta, (2005) 4 SCC 449 para 10)
  • The party who wants to dislodge the conclusiveness has the burden to show a negative, 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. (Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 para 10)

Presumption of legitimacy

  • The presumption under Section 112 of the Indian Evidence Act can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities or on the basis of slender material. The standard of proof in such cases must be of a degree in between the preponderance of probability and proof beyond reasonable doubt by way of abundant caution and has a matter of public policy. (Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 paras 11 & 12)
  • The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. (Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 para 39)
  • The verdict of displacement of the presumption shall not be rendered on the basis of slender materials. If a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. (Kamti Devi v. Poshi Ram, (2001) 5 SCC 311 para 11; Banarasi Dass v. Teeku Datta, (2005) 4 SCC 449 para 13)
  • The courts must be inclined towards upholding the legitimacy of the child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. (Dukhtar Jahan v. Mohd. Farooq, (1987) 1 SCC 624).

[W v. H, 2016 SCC OnLine Del 4786, decided on 26.08.2016]

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