A DNA test cannot be ordered merely because the parties are in a dispute over the suspicion of the paternity of a child, the Kerala High Court has said.
It also held that the DNA test cannot be resorted to in the absence of specific denial of paternity of the child.
A single judge bench of Justice A Badharuddin rejected a man’s plea to conduct DNA test of the child, earlier declined by a family court, saying the dismissal of the application put in by him to conduct DNA test with a view to clear his suspicion or doubt regarding the paternity of the child, can only be justified.
The wife opposed the plea, contending it was filed to deny maintenance. She said the child was born in 2006 and she had remained with the husband in Oman between February 12, 2005 and May 12, 2005.
Declining his plea, the family court said the DNA test to rebut the conclusive presumption under Section 112 of the Evidence Act could be available only in compelling circumstances and not as a device to clear suspicion, regarding paternity. It had also noted the man had raised similar plea earlier too which was withdrawn when the couple resumed joint residence.
The High Court then dealt the question whether DNA test can be conducted in order to clear the suspicion regarding the paternity of the child, when there is no specific denial of paternity.
It referred to Section 112 of the Indian Evidence Act, 1972, which provides 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 High Court also relied upon the Aparna Ajinkya Firodia Vs Ajinkya Arun Firodia’ case (2023), in which the Supreme Court considered the circumstances under which the DNA test of a minor child may be directed.
It also cited ‘Pattu Rajan Vs State of Tamil Nadu’ in which the Supreme Court considered the evidentiary value insofar as expert opinion under Section 45 of the Evidence Act, 1872 and held that it cannot be forgotten that opinion evidence is advisory in nature and the court is not bound by the evidence of the experts.
The HC concluded that the law that emerges is that merely because parties have dispute about paternity, it does not mean that the court should direct DNA or such other test to resolve the controversy.
“In such circumstances, the parties should be directed to lead evidence to prove the dispute of factum of paternity and only when the court finds it impossible to draw an inference based on such an evidence or the controversy in issue cannot be resolved without DNA test, it may direct the DNA test and not otherwise. To put it differently, only in rare and exceptional cases of deserving nature, DNA test or any other scientific test become indispensable to resolve the controversy,” the bench said.
The court dismissed the plea, finding no merits.
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