Source – Allahabad High Court

Why in News?

The bench of Justice Saurabh Shyam Shamshery was hearing a plea for DNA test to test the parentage under Section 112 of the Indian Evidence Act, 1872 (IEA).

• The Allahabad High Court heard this plea in the case of Smt. Mobin And Another v. Dy. Director of Consolidation And 6 Others.

What is the Background of Smt. Mobin And Another v. Dy. Director of Consolidation And 6 Others Case?

• The case is concerned with a land in dispute that was in the name of Yaqoob, who has three sons, namely, Shakeel, Jameel and Furkan.
• The eldest son Shakeel married petitioner no. 1 and it was contended that they had a daughter (petitioner no. 2) out of wedlock who was born after death of Shakeel.
• Hence, her name was not mentioned in the will of Shakeel.
• The matter is related to the paternity of petitioner 2 as the daughter of Shakeel because the respondent contended that petitioner no. 2 was born out of the second marriage of petitioner no. 1 after Shakeel’s death.
• As per the matriculation certificate or birth certificate issued from School the petitioner no. 2 was born after 615 days of Shakeel’s death.

What was the Court’s Observation?

• The HC observed that “if there is a document which is recognized to be sufficient legal proof of determination of date of birth, i.e., matriculation certificate, therefore, no circumstance exists to pass an order for DNA test.”

What are the Guidelines of Supreme Court on DNA Test?

The Supreme Court in the case of Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023) laid down principles that could be culled out as to the circumstances under which a DNA test of a minor child may be directed to be conducted:

• 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.
• 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 IEA. 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.
• 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.
• 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.
• 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.

What is Legal Provision Involved in the Case?

• Section 112 of IEA: 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 he is the legitimate 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.