Source: Kerala High Court

Why in News?

The Kerela High Court (HC) has held that DNA test cannot be carried out solely based on the presence of a disagreement or uncertainty regarding paternity in the matter of Sujith Kumar S v. Vinaya V S.

Background

• The present petition pertains to the facts that the couple got married in the year 2004 and a child was born to them in 2006.
• The paternity of the child was a matter of dispute before the Family Court.
• The petitioner (Sujith Kumar S, Husband) contended that he was abroad for years after the marriage and that he brought the respondent (Vinaya V S, Wife) abroad twice.
• The petitioner thereafter alleged suspicion regarding paternity of the child on the ground that they were not living together due to the mental illness of the respondent and sought DNA test to find out the paternity of the child.
• Family Court dismissed the application filed by the petitioner for conducting paternity test which was challenged before the Kerala HC.

Court’s Observations

• Justice Badharudeen of the Kerela HC observed that the Family Court had dismissed the application of the petitioner relying upon Section 112 of the Indian Evidence Act, 1872 (IEA) on the presumption of birth during the subsistence of marriage.
• Upon HC’s examination of Section 112 of IEA it was deduced that DNA test was conducted only to rebut the conclusive proof of denial of paternity of the child and not in any other case while relying upon:
  • Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023): The Supreme Court (SC) emphasized that the presence of a paternity dispute alone does not automatically grant permission for DNA tests or other scientific examinations.
  • Pattu Rajan v. State of Tamil Nadu (2019): Evidentiary value of expert opinion under Section 45 of IEA is advisory in nature and the court is not bound by the evidence of the experts.
• The HC further stated that the parties must present additional evidence to substantiate their claims of disowning the child's paternity. The court reinforced that DNA tests or similar scientific examinations could only be permitted in exceptionally rare cases, when the court was convinced that no alternative methods were available to resolve the dispute.

Legal Provisions

Indian Evidence Act, 1872

Presumption Regarding Legitimacy

• Maternity is a fact and paternity is a presumption, the same is dealt with by Section 112 of the Act.
  • Section 112 - Birth during marriage, conclusive proof of legitimacy –– The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that s/he is the legitimate daughter/son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
  • Conclusive Proof is defined by Section 4 of IEA as:
    • When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
• The conclusive proof of paternity can only be rebutted by proving non-access by the husband at the time of conception of the child. Access here means actual marital intercourse.
  • It must in all cases be established that at the time of conception, there was no chance that husband and wife could have access to each other E.g. One was in London whereas the other was in India at the time of conception.

Case Laws on Presumption of Paternity

• Raghunath Parmeshwar Pandit Rao Mali v. Eknath Gajanan Kulkarni (1996): The SC in this case held that preposition of valid marriage can be presumed where there is evidence on record to prove that the couple was staying together as husband and wife for a prolonged period of time.
• Shyam Lal v. Sanjeev Kumar (2009): Both the plaintiff and the defendant were born while their mother's marriage to the deceased was legally valid. There was no documented evidence suggesting that the deceased ever lacked access to the mother.
  • Consequently, it was concluded by the SC that there existed a substantial presumption regarding the legitimacy of the child.
• Goutam Kundu v. State of West Bengal (1993): The SC laid down following guidelines:
  • Courts cannot order blood samples as matter of routine.
  • Wherever such prayer is made for inquiry, it must not be entertained.
  • Strong case of non-access must be proved by the husband.
  • The court may carefully examine such request as this may lead branding of child as a bastard and mother as unchaste.
  • No one can be compelled to provide blood samples.
• Nandlal Wasudev Badwaik v. Lata Nandlal Badwaik (2014): The SC held that the IEA was enacted at the time when modern scientific techniques were not in existence. When the truth is known there is no scope of presumption but where there is conflict between conclusive proof and modern scientific techniques, the latter must prevail over the prior.