Courts Need Not Order DNA Test Of Child To Determine Paternity Even If Mother Agrees, Must Act As Custodians Of Child's Rights: Bombay HC
The Bombay High Court has held that even if a mother agrees to get done the DNA profiling test of her child to ascertain its paternity, the courts must still act as the 'custodian' of the rights of the child and consider the pros and cons of the said test before calling upon the minor to undergo the test.
Single-judge Justice RM Joshi said the a child being a minor is not capable of taking decision of agreeing or refusing the DNA test.
"Even, if it is accepted for the sake of argument that the wife conceded the said request, still it was absolutely obligatory for the Court to consider best interest of the child. As held by the Supreme Court, no one can be compelled to undergo blood test. In case of a minor child, he/she is not capable of taking decision of agreeing to the test or refusal thereof. More particularly, when the parents of such child are fighting against each other and most of the times, the child is a tool, in such fight, the Court must become the custodian of rights of minor child. There would be more responsibility on the Court than to just decide the lis/disputed questions between parties. The Court is undoubtedly required to consider pros and cons before calling upon minor to undergo blood/DNA text," Justice Joshi held in the order passed on July 1.
The bench was dealing with an appeal filed by a woman challenging the February 7, 2020 order passed by a Family Court, which ordered a DNA test of the woman's child born on July 27, 2013. The Family Court had allowed an application filed by the woman's estranged husband, who disputed the paternity of the child on the ground that his wife was living an 'adulterous' life and that she begot the child only after she started living separately.
The wife, however, contended that she was already three months off pregnant when she left the matrimonial house of her husband.
"The allegation of the husband is that he is entitled for decree of divorce for the reason that his wife is /was living an adulterous life. A question arises as to whether, this is an eminent case for passing order of DNA test. The candid answer to the same would be emphatic no," Justice Joshi said.
The reason for this, Justice Joshi explained that unless the husband disputes that he is not the father of the child and makes out a specific case of having no access to wife and rebuts presumption under Section 112 of the Indian Evidence Act, the question of determining the paternity of the child does not arise.
"Though, the judgment of the Supreme Court cited by the husband indicates importance and even accuracy of scientific DNA Profiling Test, still question arises as to whether the presumption of conclusive proof of legitimacy can be dislodged on this ground, when father does not satisfy the condition of he having no access to mother of the child during relevant time. Secondly, if there is allegation against the wife that she lives adulterous life, the said fact can be proved by any other evidence than calling upon the child to undergo the paternity test," the judge opined.
With these observations, the bench dismissed the husband's plea.
Appearance:
Advocate MP Kariya appeared for the Wife.
Advocate SS Bhalerao represented the Husband.
Case Title: SKP vs KSP (Writ Petition 3499 of 2020)