@JUDGMENTTAG-ORDER
R. Regupathi, J.@mdashThe respondents are the wife and child of the petitioner herein. The respondents have filed a petition for maintenance u/s 125 Cr.P.C. during the year 2005. Pending enquiry, the petitioner has taken out an application, disputing the paternity of the second respondent child. After hearing both the parties, the order impugned has been passed, refusing to entertain such an application seeking for a direction for subjecting the child to DNA test, to prove the paternity. Aggrieved against the same, the present revision has been filed before this Court.
2. Learned counsel for the petitioner submits that the petitioner did not have access and sexual intercourse from 12.01.2001 and under such circumstances, the baby born on 11.10.2001 cannot be construed as his child and on this sole ground, sought for subjecting the second respondent child for DNA test. Learned counsel for the petitioner relied on the cases reported in
3. In
The Hindu Marriage Act or any other law governing the field do not contain any express provision empowering the Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination. However, in our opinion, this does not preclude a Court from passing such an order.
..........Determination of such an issue although may have some relevance with the determination of the issue in the list, nonetheless, the Court cannot be said to be wholly powerless in this behalf. Furthermore, it is one thing to say that a person would be subjected to a test which would invade his right of privacy and may in some case amount to battery; but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the Court to arrive a a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified psychiatrist. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests.
4. Per contra, learned counsel for the respondents submits that the order impugned is well founded and it does not require reconsideration. It is contended that the marriage of the first respondent with the petitioner took place on 12.03.2000 and even as per the admission in the affidavit by the petitioner, the petitioner was having access until 12.01.2001 and the date of birth of the second respondent is 11.10.2001 and the total number of days are 270. Under such circumstances, by invoking Section 112 of the Indian Evidence Act, the learned counsel submitted that it must be presumed that the child is deemed to be born to the petitioner and the same is the conclusive proof as per the language of the section.
5. Learned counsel for the respondents also relied on the case reported in
... in a maintenance proceedings, the party disputing the paternity of the child has to prove his non-access with the mother during the relevant time in order to dispel the presumption u/s 112 of the Indian Evidence Act and such presumption shall have to be displaced by leading strong preponderance of evidence and not by mere filing a petition for determining the paternity by way of a DNA test.
6. Learned counsel for the petitioner also relied on the judgment reported in
9. It was noted that Section 112 of the Indian Evidence Act, 1872 (in short "the Evidence Act") requires the party disputing the parentage to prove non-access in order to dispel the presumption of the fact u/s 112 of the Evidence Act. There is a presumption and a very strong one, though a rebuttable one. Conclusive proof means proof as laid down u/s 4 of the Evidence Act.
10. In matters of this kind the Court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater is est quern nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.
11. It is rebuttable presumption of law that a child born during unlawful wedlock is legitimate and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities.
12. In Dukhtar Jahan Vs. Mohd. Farooq, this Court held (SCC p.629. Para 12)
Section 112 lays down that if a 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 and the mother remains unmarried, it shall be taken as 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. This rule of law based on the dictates of justice has always made the Courts incline towards upholding the legitimacy of a 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. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.
The view has been reiterated by this Court in many later cases e.g. Amarjit Kaur Vs. Harbhajan Singh.
13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Evidence Act e.g. 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. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above (See Kamti Devi Vs. Poshi Ram.)
7. I have perused the materials available on record and heard the learned counsel for both parties.
8. The judgment cited by the learned counsel for the petitioner is not directly on the point and the case reported in
