DNA Test : W Vs. H [Delhi High Court, 26-08-2016]
Summation of the principles laid down by judicial precedents on consideration of an application for Medical Examination or DNA test
So far as the court’s discretion to direct a DNA test is concerned, the following principles can be summed out:
1. A rebuttable presumption of legitimacy is attached to a child born of a married woman during a subsistence of marriage or within 280 days of its severance.
(Ref.: Section 112 of the Indian Evidence Act; AIR 2001 SC 2226, Kamti Devi v. Poshi Ram – para 11; (2005) 4 SCC 449, Banarsi Dass v. Teeku Datta – para 10; AIR 2009 SC 3115, Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors. – para 10)
2. The DNA test is not to be directed as a matter of routine. Such direction can be given only in deserving cases.
(Ref.: (2005) 4 SCC 449, Banarsi Dass v. Teeku Datta – para 14)
3. The court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed.
(Ref.: AIR 2003 SC 3450, Sharda v. Dharampal – para 80 ; AIR 2010 SC 2851, Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & Anr. – Para 13)
4. (a)There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
(Ref.: (1993) 3 SCC 418:AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal & Anr.)
(b) The court would exercise discretion, only after balancing the interests of the parties and on consideration as to whether for a just decision in the matter the DNA test is imminently needed i.e. as to whether it is not possible for the court to reach the truth without use of such test. For so concluding, the court has to consider materials placed by both parties and the test shall not be ordered in routine for a roving enquiry.
5. “Access” and “non-access” mean the existence or nonexistence of opportunities for sexual intercourse; it does not mean actual “cohabitation”.
(Ref.: AIR 1934 PC 49, Karapaya Servai v. Mayandi ; (1993) 3 SCC 418:AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal & Anr. – para 24)
6. In a civilised society it is imperative to presume the legitimacy of a child born during continuation of a valid marriage and whose parents had “access” to each other.
(Ref.: (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors. – para 42)
7. Burden of proving illegitimacy is on the person who makes such allegation.
(Ref. : para 10 of (2005) 4 SCC 449 Sh. Banarasi Dass v. Mrs. Teeku Datta)
8. The party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time.
(Ref.: AIR 2001 SC 2226, Kamti Devi v. Poshi Ram – para 10)
9. The presumption under Section 112 of the Indian Evidence Act can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities or on the basis of slender material. The standard of proof in such cases must be of a degree in between the preponderance of probability and proof beyond reasonable doubt by way of abundant caution and has a matter of public policy.
(Ref.: AIR 2001 SC 2226, Kamti Devi v. Poshi Ram – para 11 & 12)
10. The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt.
(Ref.: (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors. – para 39)
11. The verdict of displacement of the presumption shall not be rendered on the basis of slender materials. If a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable.
(Ref.: (2001) 5 SCC 311, Kamti Devi v. Poshi Ram – Para 11; (2005) 4 SCC 449, Banarsi Dass v. Teeku Datta – para 13)
12. The courts must be inclined towards upholding the legitimacy of the child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father.
(Ref.: Dukhtar Jahan v. Mohd. Farooq [(1987) 1 SCC 624)