“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 held that a man’s right to privacy cannot take precedence over a child’s right to ascertain his father’s identity.
Delivering the judgment, Justice Archana Puri dismissed a revision petition challenging a trial court’s order that allowed the child’s plea for a DNA test to determine whether the man concerned is his biological 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 direction allowing the use of police force to overcome any resistance from the defendant during the collection of his DNA sample was unjustified.
The case originated from a maintenance petition under Section 125 of the Code of Criminal Procedure (CrPC), filed by a minor through his mother. As the defendant disputed his paternity, a separate suit was later instituted seeking a declaration to establish the child’s parentage.
The child argued that his mother became acquainted with the man in 1988 while residing as a tenant in his house, and that a relationship subsequently developed between them. He claimed that he was born in 1990 as a consequence of that relationship.
The man, however, denied the allegation, maintaining that the child was born to the woman and her former husband, whom she divorced in 1994. After reviewing the evidence on record, the trial court, in 2015, permitted the request for a DNA test.
The petitioner thereafter moved the High Court, arguing that since the child was born during the subsistence of his mother’s marriage, the presumption under Section 112 of the Indian Evidence Act would apply.
This provision stipulates that a child born within a valid marriage is to be presumed legitimate, unless it is proven that the spouses had no opportunity for access at the relevant time.
The Court observed that the intent behind Section 112 is to shield the child from the stigma of illegitimacy. However, it clarified that the present matter was distinguishable on facts and that the provision could not be invoked.
Citing earlier rulings that discourage ordering DNA tests as a routine measure, the Court noted that those precedents primarily apply to cases where a spouse in a subsisting marriage challenges the paternity 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 noted that the child was fully conscious of the possible implications of a DNA test, including any adverse impact on his and his mother’s social standing. However, since the request for the test was made by them, the Court considered this factor while ruling 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 observed that if the petitioner truly has no relation to the child, as he claims, undergoing a DNA test would not result in any prejudice to him.
“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 clarified that his DNA sample must not be procured through coercive means.
It further directed the trial court to record its findings in light of the course of action the man chooses to adopt on this issue.
“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.
