“Justice to this child 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,” the Court said.
The Punjab and Haryana High Court has ruled that a man’s right to privacy cannot outweigh a child’s right to know the identity of his father.
Justice Archana Puri delivered the judgment while rejecting a revision petition filed against a trial court order permitting a child’s request for DNA testing to establish whether the man in question is his biological father.
“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 right of defendant No.1 [man claimed to be father] 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 said.
The High Court, however, noted that the trial court’s order permitting the use of police force to prevent any resistance from the defendant during the collection of his DNA sample was unwarranted.
The matter stemmed from a maintenance petition filed under Section 125 of the Code of Criminal Procedure (CrPC) by a minor through his mother. Since the defendant denied being the child’s father, a suit was subsequently filed seeking a declaration of his paternity.
The child contended that his mother had come into contact with the man in 1988 when she was a tenant in his house, and over time, a relationship developed between them. He was born in 1990 as a result of that relationship, it was claimed.
The man, however, refuted the allegation, asserting that the child was born to the woman and her former husband, whom she divorced in 1994. After examining the material on record, the trial court, in 2015, allowed the plea for a DNA test.
The petitioner then approached the High Court, contending that since the child was born during the subsistence of his mother’s marriage, the mandate of Section 112 of the Indian Evidence Act would apply.
This provision lays down that a child born during a valid marriage shall be deemed the legitimate offspring of the husband, unless it is established that the spouses had no access to each other at the relevant time.
The Court noted that the presumption under Section 112 is intended to protect the child from being stigmatized as illegitimate. However, it clarified that the present case stood on a different footing and that the provision would not be applicable.
Referring to precedents that caution against directing DNA tests as a matter of routine, the Court observed that such rulings pertain to situations where a spouse in an existing marriage disputes the parentage of a child.
“The rationale laid down in the decisions aforesaid, where it was one partner of the marriage, who resisted the parenthood, in any manner, would not apply, where a child on attaining adulthood moves to the Court to assert his paternity. In that eventuality, application of Section 112 of the Indian Evidence Act does not arise,” it ruled.
The Court noted that the child in the present case has come forth asserting that the petitioner is his father. It added that the child’s mother has also backed his claim.
“[The] presumption under Section 112 of the Indian Evidence Act, would not arise, when impliedly, additional access of the mother of the plaintiff, at the relevant time of begetting of the plaintiff, at the behest of defendant No.1, is asserted,” the Court said.
The Court further observed that the child was fully aware of the potential consequences of the DNA test — including the possibility of diminishing his and his mother’s social standing. Nevertheless, since they themselves sought the test, this was taken into account by the Court while deciding in their favour.
“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,” the Court said.
The Court further remarked that if, as claimed, the petitioner has no connection with the child, subjecting him to a DNA test would cause no prejudice to him.
“Rather, if he is father, his position will be put beyond doubt by the testing and the paternity as pleaded shall be ascertained. 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, this 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,” it added.
Accordingly, the Court dismissed the man’s revision petition but made it clear that no coercive measures should be employed to obtain his DNA sample.
It further directed the trial court to draw its conclusions based on the course of action chosen by the man in this regard.
“In the eventuality of any disinclination, on the part of defendant No.1 and the reason therefor, to be recorded by the trial Court, shall be appraised by the trial Court, at appropriate stage, in the backdrop of the other evidence, brought on record,” it said.