“Justice to this child is a factor not to be ignored. Rather, his assertion demands that truth be known, when truth has to be established, as it undoubtedly can,” the Court said.
The Punjab and Haryana High Court has ruled that a man’s right to privacy cannot take precedence over a child’s right to know the identity of his father.
Justice Archana Puri delivered the judgment while rejecting a revision petition challenging a trial court’s order permitting the child’s request for DNA comparison with the man he asserts to be his father.
“Justice to this child/plaintiff, is a factor, not to be ignored. Rather, his assertion demands that truth be known, when truth has to be established, as it undoubtedly can. Simultaneously, the right of defendant No.1 [man claimed to be father] to privacy and dignity, also has to be taken into consideration. However, the right of privacy, as such, cannot override the right of the child and vest interest in his favour,” the Court said.
The High Court, however, observed that the trial court’s order permitting the use of police force to secure the defendant’s DNA sample was unwarranted.
The matter stemmed from a maintenance claim under Section 125 of the CrPC, filed by the minor through his mother. Since the man denied paternity, a declaratory suit was subsequently filed seeking recognition of him as the child’s father.
The petitioner then approached the High Court, contending that Section 112 of the Indian Evidence Act applied since the child was born during the subsistence of his mother’s marriage.
Under this provision, the birth of a child during a valid marriage is deemed conclusive proof of legitimacy, unless it is established that the spouses had no access to each other at the relevant time.
The Court noted that the presumption under Section 112 aims to safeguard the child’s interest by preventing the stigma of illegitimacy. However, it clarified that the present matter stood on a different footing and that Section 112 was inapplicable.
Referring to precedents that caution against ordering DNA tests as a routine practice, the Court explained that those judgments pertain to situations where a spouse in a subsisting marriage disputes the parentage of a child.
“The rationale laid down in the decisions aforesaid, where it was one partner of the marriage, who resisted the parenthood, in any manner, would not apply, where a child on attaining adulthood moves to the Court to assert his paternity. In that eventuality, application of Section 112 of the Indian Evidence Act does not arise,” it ruled.
The Court observed that in the present case, the child himself has asserted that the petitioner is his father, a claim that has also been supported by his mother.
“[The] presumption under Section 112 of the Indian Evidence Act, would not arise, when impliedly, additional access of the mother of the plaintiff, at the relevant time of begetting of the plaintiff, at the behest of defendant No.1, is asserted,” the Court said.
The Court further observed that the child was conscious of the social implications of a DNA test, which could potentially affect his and his mother’s standing in society. Nevertheless, since they themselves sought the test, this was taken into account while deciding in their favour.
“Even, mother of the plaintiff is of mature age and she is bound to be well aware of the consequences of the action of her son and his claim qua the paternity issue. They having come forward unhesitatingly has to be considered,” the Court said.
The Court further remarked that if the petitioner and the child are indeed unrelated, as claimed, the conduct of the DNA test would cause no prejudice to the man.
“Rather, if he is father, his position will be put beyond doubt by the testing and the paternity as pleaded shall be ascertained. Why there should be any hesitation to undergo this test is not coming forth. Of course, the evidence is to be led by both the sides, but the question arises, when the paternity can be affixed by surer test, then why decision based on legal presumption or gathering of inference, on the basis of the evidence or any gap, on account of misjudgment, be left. Considering all these aspects, this test will surely assist the Court to reach the right conclusion, vis-a-vis, relationship between the parties concerned. That being so, it ought to be undertaken,” it added.
Accordingly, the Court rejected the man’s revision petition but made it clear that no coercion should be applied to obtain his DNA sample.
It further directed that the trial court must draw its inference based on the choice made by the man regarding the DNA test.
“In the eventuality of any disinclination, on the part of defendant No.1 and the reason therefor, to be recorded by the trial Court, shall be appraised by the trial Court, at appropriate stage, in the backdrop of the other evidence, brought on record,” it said.
