| Headnote |
Evidence Act, 1872 – s.112 – Birth during marriage, conclusive proof of legitimacy – DNA test of minor child – Circumstances under which may be directed – Principles enumerated. Constitution of India – Right to privacy – DNA testing of children – Held: Children have the right not to have their legitimacy questioned frivolously before a Court of Law – This is an essential attribute of the right to privacy. Evidence Act, 1872 – s.112 – Presumption u/s.112 – Absence of plea of “non-access” to dislodge such presumption – Effect of – Respondent-husband filed petition for divorce on the ground of adultery against appellant-wife – Sought direction to subject the son to DNA testing – Granted – Correctness of – Held: Once a marriage is held to be valid, there is a strong presumption as to the children born from that wedlock as being legitimate – This presumption can be rebutted only by strong, clear and conclusive evidence to the contrary – The conclusive presumption of paternity of a child born during the subsistence of a valid marriage is that the child is that of the husband and it cannot be rebutted by a mere DNA test report – What is necessary to rebut is the proof of non-access at the time when the child could have been begotten, that is, at the time of its conception – However, in the present case, no plea was raised by the husband as to non-access in order to dislodge the presumption u/s. 112 – Therefore, no prima facie case made out by the respondent to justify a direction to conduct a DNA test on the son – Also, the respondent specifically claimed that he is in possession of call recordings/transcripts, and the daily diary of the appellant pointing to her infidelity therefore, this is not a case where a DNA test would be the only possible way to ascertain the truth regarding the appellant’s adultery – Impugned judgment of the High Court and the order of the Family Court set aside – [Per V. Ramasubramanian, J. (Concurring)] – The question as to the permission of DNA test is to be analysed through the prism of the child and not through the prism of the parents – The child cannot be used as a pawn to show that the mother of the child was living in adultery – It is always open to the respondent-husband to prove the adulterous conduct of the wife by other evidence but, the child’s right to identity should not be allowed to be sacrificed. Evidence Act, 1872 – ss. 112, 114 illustration (h) – Whether an adverse presumption can be drawn under illustration (h) to s.114, as to the wife’s adulterous conduct if she refuses to comply with a direction for the child to undergo a DNA test – Respondent-husband claimed that he found out the alleged adulterous conduct of the appellant-wife 3 years after the birth of the second son, filed petition for divorce on the ground of adultery – Sought direction to subject the second son to DNA testing, granted – Challenged by appellant – Relying on Dipanwita Roy case, respondent contended that he is not questioning the legitimacy of the child, but alleging adultery against the appellant and therefore, on her refusal to subject the child to DNA test, a presumption u/s. 114(h) can be drawn against her – Held: The presumption under the section is discretionary and not mandatory – Further, the facts in Dipanwita Roy were so compelling, so as to justify a direction to conduct a DNA test as the husband therein had taken a specific plea of non-access, unlike in the present case – In the instant case, there is no dispute about the paternity of the son as admittedly he was born during the continuous cohabitation of the parties and thus during the subsistence of a valid marriage– On facts, no adverse inference can be drawn as against the appellant u/s. 114 on her refusal to subject her son to a DNA test – Allegation of adultery has to be proved by the respondent de hors the issue of paternity of the son – [Per V. Ramasubramanian, J. (Concurring)] – s.114 has nothing to do with, nor is in connection with conclusive proof of legitimacy dealt with by s. 112 – Both s. 112 and s. 114 fall under different compartments – s. 114(h) has no application to a case where a mother refuses to make the child undergo DNA test – Furthermore, on facts, respondent had access to the wife both at the time when the child was begotten and for a full period of three years even thereafter – Therefore, the conclusive proof u/s. 112 has actually come into play in this case – Contention of the respondent that what is sought to be invoked is only s.114(h) and not s.112 is rejected. Evidence Act, 1872 – s.112 – Question of legitimacy of the child, burden of proof – Held: Since s.112 creates a presumption of legitimacy that a child born during the subsistence of a marriage is deemed to be legitimate, a burden is cast on the person who questions the legitimacy of the child.Evidence Act, 1872 – s. 112 – Principle underlying – “access”, “non-access” – Meaning – Held: Principle underlying s. 112 is to prevent an unwarranted enquiry as to the paternity of the child whose parents, at the relevant time had “access” to each other – “access” or “non-access” does not mean actual co-habitation but means the “existence” or “non-existence” of opportunities for sexual relationship – s. 112 refers to point of time of birth as the crucial aspect and not to the time of conception – The time of conception is relevant only to see whether the husband had or did not have access to the wife – Operation of the conclusive presumption can be avoided by proving non-access at the relevant time.International Law – International Conventions/Treaties– The Convention on Rights of Child – Best interests of a child – Rights to Privacy, Autonomy and Identity of Children – Discussed. Evidence Act, 1872 – s. 112 – Object of – Held: A child should not be lost in its search for paternity – Precious childhood and youth cannot be lost in a quest to know about one’s paternity – Therefore, the wholesome object of Section 112 of the Evidence Act which confers legitimacy on children born during the subsistence of a valid marriage, subject to the same being rebutted by cogent and strong evidence, is to be preserved – A finding as to illegitimacy, if revealed in a DNA test, effect on the child psychologically, discussed. Evidence Act, 1872 – ss. 4, 112 – Held: A combined reading of ss. 4 and 112 would show that once the party questioning the legitimacy of the birth of a child shows that the parties to the marriage had no access to each other, then the benefit of s. 112 is not available to the party invoking s. 112 – However, if such a party is not able to prove that he had no access to the other party to the marriage, then the shield of s. 112 protects the other party to such an extent that it cannot be pierced by any amount of evidence in view of the prohibition contained in s. 4.Words & Phrases: “may presume”, “shall presume” and “conclusive proof” – Discussed – Evidence Act, 1872 – ss. 4, 112 and 114. “inference”, “adverse inference” – Meaning of – Discussed. Maxims – Pater est quem nuptiae demonstrant – Held: Questions as to illegitimacy of a child, are only incidental to the claim of dissolution of marriage on the ground of adultery or infidelity – Allowing DNA tests to be conducted on a routine basis, in order to prove adultery, would amount to redefinition of the aforesaid maxim, which means, the father is he whom the nuptials point out. |
