'Child's Right To Know Parentage Overrides Parent's Right To Privacy': Punjab & Haryana High Court

The Punjab and Haryana High Court has upheld an order mandating a DNA test while emphasizing that a man's right to privacy can't override a child's right to know their biological parentage.

The observation was made while dismissing a petition that challenged a trial court's decision allowing a child's plea for the comparison of his DNA sample with that of the man he claims to be his father. However, the Court modified the order with modification of conducting of the test, but without any compel or assistance of the police.

Justice Archana Puri said, "The child, as a plaintiff, has a right to know his parentage in the context of denial of relationship by defendant No.1 (man claimed to be the father), in one of the rounds of litigation of defendant No.1 with defendant No.2 (mother). 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 man's right 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 added.

The Court further highlighted that the child, who asserted the man to be his father, is major and while asserting paternity, he is thus very well aware of the consequences of the order, which may downsize his position and that of his mother, in the society.

"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," it added.

In a maintenance case filed under Section 125 of Code of Criminal Procedure  by a minor through his mother. The defendant-man had refused to accept the paternity, leading to filing of a suit for declaration that he is the father.

The Trial Court allowed the application for conducting of the DNA test of the defendant-man and furthermore, a direction was given to the parties to appear at Forensic Science Laboratory, for drawing samples of blood with police help, if required and further also, it was observed that in case, the police assistance is found absolutely necessary, then a direction is issued to the police to offer help with reasonable care, in case resistance is made by the defendant.

Challenging the decision, the man argued that since the child was born during the subsistence of his mother's marriage, Section 112 of the Indian Evidence Act would be applicable.

As per Section 112, 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.

The Court said that in the light of the denial of defendant, of he being the father and who had further asserted about the child (petitioner) to be stranger to him, presumption under Section 112 of the Indian Evidence Act, would not arise.

It is also evident that the mother of the plaintiff, did not deny the relationship. Rather, while conducting cross-examination of the witnesses, has put forth the claim about showering of love and affection, towards the plaintiff, at the behest of the man (alleged father), the bench observed.

The Court said that the DNA test is surer test to affix the paternity. If the plaintiff and defendant-man are strangers in any manner as asserted, no injustice shall be done to defendant by conducting of this test. Rather, if he is father, his position will be put beyond doubt by the testing and the paternity as pleaded shall be ascertained.

Justice Puri said, "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, the judge said that the 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.

However, use of force as ordered by the trial Court, need not to be carried out. At this stage, eventuating such circumstance, will go too far to conclude about there to be no inclination, on the part of defendant, to undergo the test, it added.

Mr.Akshay Jindal and Mr.Vijayveer Singh, Advocates for the petitioners.

Mr.Nandan Jindal and Mr.Aniket Singla, Advocates for the respondents.

Title: AXXX v. XXXX