Bombay high court dismisses plea for DNA test to ascertain paternity – Times of India

MUMBAI: Bombay high court bench at Aurangabad dismissed a man’s plea to conduct a DNA test to ascertain paternity of his two minor children born during his marriage.
The HC said he had admitted being their father in their school records in a court document and hence found his plea “devoid of substance’’.
The HC also distinguished his case from the one he cited where the SC had in 2014 permitted a DNA test as scientific proof of paternity, saying the husband, in that case, had “never admitted the paternity.’’
The HC declined to interfere with an order of a magistrate who had rejected the father’s plea for the forensic test in 2019. Justice M G Sewlikar said since the man had also admitted while filing a mutual consent divorce petition that the children were from his marriage, directing them to undergo a DNA test is “completely unwarranted.’’
The wife’s counsel A R Devkate said his admission was reason enough for the HC to dismiss his petition.
The husband, through his counsel A D Kesliwal, said that he had “all along’’ disputed his paternity since their birth in 2003 and 2008 and explained he had admitted the paternity in the divorce proceedings only because “he wanted anyhow to end the marriage.’’
Section 112 of the Indian Evidence Act deal with the legitimacy of a child if born during a valid marriage between a man and woman or if born within 280 days after its dissolution, the mother remaining unmarried would be “conclusive proof that he is the legitimate son of that man unless it can be shown that neither had ‘access’ to each other when a child could have been conceived.
The HC said the law was clear that a “child born during continuance of a valid marriage shall be conclusive proof that the child is legitimate child of man to whom the lady giving birth is married.’’
Justice Sewlikar said the husband can deny paternity only if he proves non-access with his wife at the relevant time. He added, “Access and non-access mean the existence or non-existence of opportunities for sexual intercourse. It does not mean actual cohabitation.’’
The mutual consent divorce to end their marriage of 1992, did not go through as the wife withdrew her consent. She later filed a civil suit for partition.
The HC said “it seems he raised this issue (of paternity) for the first time only after she filed the civil suit’’.
The wife also filed a case against him under the domestic violence Act where she said the children were theirs, from marriage. He denied the paternity and accused the wife of “adultery’’ and seeing her in an alleged “compromising” situation in 2009.
In 2013 he sought an order from the magistrate to conduct the DNA test, which wife opposed and the court rejected. There was another couple of rounds of litigation over the paternity test with a civil court permitting it, his wife then challenging it till finally it was rejected again.
The man had cited a Supreme Court ruling of 2014 where DNA test for paternity was allowed and the apex court had said, “We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of the DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on the satisfaction of the conditions enumerated therein the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption.’’
The husband argued it would not be desirable to rely on ‘presumption of paternity’ under the Indian Evidence Act when there could be cogent scientific proof in the “era of technology’’ and undergoing DNA test would cause no harm to his wife.
The HC, however. said the man had admitted to being the father in school and court record and shows the children “were born during a continuance of valid marriage’’ and thus held the magistrate’s order had committed no error in rejecting his application.