Raj HC | Husband seeking DNA test of child born to his wife must establish no access to his wife during the period of 9 months, beyond reasonable doubt

Rajasthan High Court: Sanjeev Prakash Sharma, J. dismissed a petition filed by a man who assailed the lower court’s order rejecting an application for conducting a DNA test of his wife’s son, holding that the petition was devoid of merits.

Petitioner herein had filed an application before the learned Civil Judge praying for conducting a DNA test of a son born to his wife on the ground that his wife (respondent herein) was pregnant prior to getting married and therefore, the child born was not his child. He pleaded that the sonography examination of his wife during pregnancy reported that she was pregnant for 35 weeks and 06 days. His application was rejected holding that as the petitioner was living as the husband with the respondent during the period of pregnancy, and their marriage was still subsisting, the child borne from her would be presumed to be the petitioner’s son in terms of Section 112 of the Evidence Act, 1872. Aggrieved by the said order, instant petition was filed.

Petitioner’s counsel, Rajneesh Gupta, relied on the judgment passed by Coordinate Bench of the Rajasthan High Court, in Dalip Singh v. Ramesh, 2017 SCC OnLine Raj 2720, whereby it was held, “If the factum or presumption of paternity is disputed by someone, more particularly by the alleged father, it is difficult nay impossible for the party alleging such paternity to prove it without any scientific investigation.” The respondent contended that the application contained false averments. She asserted that the pregnancy and birth of her son were on account of marriage and relationship with the petitioner. There was no report from the hospital where she had been undertaking her treatment and the said report obtained was fictitious.

The Court relied on the judgments in Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554, and Goutam Kundu v. State of W.B, (1993) 3 SCC 418, and concluded that the reasoning adopted by the trial court for rejecting the application was incorrect. Merely because of presumption to be drawn under Section 112 of the Evidence Act, an application for seeking a DNA test could not be ousted.

However, deciding on the merits of the case, the Court observed, “it would not be appropriate to allow a DNA test to be conducted at the stage merely on the basis of the bland statement of the husband making allegations without appropriate legal evidence on record.”  It further held that the petitioner had to establish beyond reasonable doubt about his non-access to his wife during the entire period. Reliance was also placed on the recent judgment of this court in Mahesh Chand Sharma v. State, SBCW Pet. No. 2067 of 1999 (decided on 07-03-2019), where the Court observed, “In the circumstances, an order of getting DNA test of a child goes contrary to the basic fundamental right of the said individual child.”

The Court specified that in any case where such application for conducting DNA test of a minor is filed, it would be first examined, “(a) whether there is an imminent need to conduct such DNA test; (b) Whether such test would result in harming the status of the minor in any form; (c) such report is not to be made public.”

In the light of the above, the application moved by the petitioner was rejected, though on the different ground; and the writ petition was dismissed.[Mahendra v. Mamta, 2019 SCC OnLine Raj 584, decided on 23-05-2019]

3 comments

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    Please verify original judgment. The correct expression is “non-access” and not “non-excess”.

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      Ed. Thank you for pointing out the error. It is deeply regretted.

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    Non excess or no access ?

    Ground to challenge the judgment

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