Home > Other news > Delhi HC directs N D Tiwari to give his DNA sample

Delhi HC directs N D Tiwari to give his DNA sample

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on : 21.09.2010

Pronounced on : 23.12.2010

+ IA No.4720/2008 in CS (OS) 700/2008

SHRI ROHIT SHEKHAR ….. Plaintiff Through: Sh. Sudhir Nandrajog, Sr. Advocate with Sh. S.

Santanam Swaminadhan, Sh. Kirtiman Singh, Sh. T. Singhdev and

Ms. Pia Singh, Advocates.

versus

SHRI NARAYAN DUTT TIWARI & ANR. ….. Defendants Through: Sh. Chetan Sharma, Sr. Advocate with Sh. B.B. Gupta,

Sh. Atul Sharma, Sh. Abhishek Agarwal, Sh. Abhishek Mishra, Sh. Varun Mehlawat, Sh. Gurpreet Singh and Sh. Anil Sharma,

Advocates, for Defendant No.1.

Sh. Gaurav Mitra and Sh. Siddharth Silwal, Advocate, for

Defendant No.2.

CORAM:

HON’BLE MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers Yes.

may be allowed to see the judgment?

2. To be referred to Reporter or not? Yes.

3. Whether the judgment should be Yes.

reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT, J

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1. The plaintiff by this application seeks a direction to the first defendant to furnish blood samples for enabling the DNA testing.

2. Briefly, the facts are that the plaintiff claims a decree for declaration that the first defendant is his biological father. The second defendant (hereafter referred to as Ujjawala Sharma) is the plaintiffs mother. Apparently, he (first defendant) was a Member of Parliament during the period 1967-1980. It is contended that Ujjawala Sharma was active in politics and

IA No.4720/2008 in CS(OS) No. 700/2008 Page 1 involved in activities of All India Young Woman Congress apart from her job as Sanskrit Lecturer at Daulat Ram College. The plaintiff also contends that Ujjawala Sharma was previously married to Sh. B.P. Sharma from whom she was estranged. Apparently, she and her husband Sh. B.P. Sharma had a son Siddhartha Sharma. The plaintiff contends that the first defendant did not have any child from his marriage, and, as he was very fond of Ujjawala Sharma and even wanted to marry her, he convinced her to have his child promising that he would divorce his wife and give his name to the child to be borne by her (i.e. Ujjawala Sharma). The plaintiff submits that believing the first defendant and due to his emotional pressure, Ujjawala Sharma yielded to his request and the plaintiff was born on 15.02.1979. It is contended that the first defendant showed interest in the plaintiff as father right from the beginning and used, to sometime, stay with him in the house of his maternal grandfather or wherever the plaintiff and Ujjawala Sharma resided.

3. The suit averments allege that the first defendant used to celebrate all important festivals and the plaintiffs birthday together, with him, and that he, i.e. (the plaintiff was) told by his mother and his maternal grandparents, as well as well wishers that the first defendant would adopt him. It is stated that in the records, plaintiffs father name was disclosed as B.P. Sharma but around the time when he became 12/13 years, he was made aware of the circumstances of his birth and that he was the biological son of the first defendant. The plaintiff claims that the first defendant was active in politics and that his relationship with him (i.e. the plaintiff) was in the public knowledge. With passage of time, , the first defendant gained prominence in his political career and started taking less interest in his (the plaintiffs) life, even though he maintained some relationship. In 1995, the plaintiff suffered a blow when the first defendant refused to meet Ujjawala Sharma and instructed his staff that she should not be allowed to enter the house. The plaintiff felt this rejection difficult to understand, as it was a big blow to his self-esteem since he was of an impressionable age, i.e. 16 years. It is alleged that the first defendants men used to give the plaintiff threatening calls. The suit alleges that in 2001 when the plaintiff tried to meet the first defendant in Delhi with Ujjawala Sharma, he was rebuffed and manhandled by the first defendants guards.

4. The suit alleges that when the first defendant became the Chief Minister of Uttaranchal in 2002, perhaps with a view to avoid unpleasantness, he agreed to meet the plaintiff occasionally. Allegedly, this went on for a while after which the first defendant again refused to meet or have

IA No.4720/2008 in CS(OS) No. 700/2008 Page 2 anything to do with the plaintiff. The suit alleges that between 2002 and 2005, a record of the meeting with the first defendant was maintained through photographs of the functions attended by the parties. It is alleged that thereafter, i.e. after 2005, the first defendant has stopped meeting the plaintiff due to which he has suffered grave mental trauma and finds it unable to bear the injustice done to him. The plaintiff submits that the inhuman conduct of the first defendant is hurting, as a result of which he filed a suit being No.1711/2007. It is submitted that at that time the first defendant was holding the position of Governor of Andhra Pradesh and the suit was withdrawn as disclosing a technical defect on 24.3.2005 with liberty to file a fresh suit. In these circumstances, he has filed the suit, claiming declaration of paternity.

5. The plaintiff urges that it is necessary and in the interest of justice that the blood samples of the first defendant should be obtained, for which the Court should issue an appropriate direction to the latter. The plaintiff urges that such a direction is necessitated on account of the DNA test report received from the Centre for Cellular and Molecular Biology, Hyderabad, to which the plaintiffs blood samples and that of Sh. B.P. Sharma, (shown in the records as his father), were submitted. The plaintiff states that the report of the said DNA report unambiguously reflects that Sh. B.P. Sharma cannot be his (i.e. the plaintiffs) biological father. The plaintiff besides relying on the report, a copy of which is on the record, also relies upon a joint affidavit by himself and the said Sh. B.P. Sharma stating that such blood samples were furnished voluntarily; he also relies upon copies of several photographs filed along with the suit and even subsequently. In support of the submission that Ujjawala Sharma and B.P. Sharma were estranged and subsequently their marriage was dissolved, reliance is placed upon the pleadings in the divorce proceedings. It is submitted that the said Court document established that the husband and wife were estranged and living separately since 1970.

6. The plaintiff submits that the Court has power under Section 75 (e) of the Code of Civil Procedure (CPC) read with Order-XXVI, Rule-10 (A) to issue a direction for holding a scientific technical or expert investigation. It is argued that the Supreme Court had in Goutam Kundu v. State of West Bengal & Anr., (1993) 3 SCC 418 even while sounding a note of caution with regard to a courts approach in deciding such applications, had summarized the legal position in the following manner: –

“26. From the above discussion it emerges:- (1) that courts in India cannot order blood test as matter of course;

IA No.4720/2008 in CS(OS) No. 700/2008 Page 3 (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) 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.

(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.”

7. The plaintiff argues that the correct legal position was, however, restated and clarified by a subsequent larger – 3 Judges Bench ruling reported as Sharda v. Dharmpal, AIR 2003 SC 3450. In the said judgment, the Court held as follows: –

“39. Goutam Kundu (supra) is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child.

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80. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia…etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In mattes of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called

IA No.4720/2008 in CS(OS) No. 700/2008 Page 4 right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.”

8. The first defendant relies upon the written statement, which has denied the suit averments. It is submitted that the suit is not maintainable since the effect of the relief claimed is that he should be declared as a legitimate son of the first defendant. The first defendant relies upon Section 112 read with Section 4 of the Indian Evidence Act and submits that the Court cannot ascertain the truth or otherwise of the paternity allegations since a valid marriage subsisted between Ujjawala Sharma and B.P. Sharma.

9. The first defendant claims that the suit is the result of a deep rooted criminal conspiracy and to defame, tarnish his image and to harm his reputation as a public figure and that it is also a tool used with the sinister design of grabbing his property. The first defendant argues that the correct legal position is that the birth of a child during the subsistence of a valid marriage between his parents is conclusive proof of legitimacy unless it is shown that the parties to the marriage had no access to each other at any time when the child had been begotten. It is emphasized that the Court cannot allow any evidence to be led for the purpose of disproving such conclusive proof except to the extent of lack of access.

10. In response to the application for direction to the first defendant to give blood samples, it is urged that the application is pre-mature since the Court would evaluate the evidence and materials at the stage of trial and then if the occasion so warrants consider and weigh the necessity of issuing such directions. However, at this stage, the Court cannot pre-judge on the basis of this scanty material and conclude that a direction sought for ought to be given.

11. The first defendant argues that the materials on record in any event nowhere substantiate the plaintiffs allegation inasmuch as the matrimonial/divorce proceedings, as between the Ujjawala Sharma and her former husband B.P. Sharma, were instituted only in 2006. Even the two applications filed by the parties before the Court which dissolved their marriage disclosed that they lived in the same building although it was shown that one lived on the first floor and the other spouse on the ground floor. Prima facie, this supported the case of access for the period 1978-2006 rather than otherwise. In these circumstances, without admitting the soundness of the plaintiffs legal contentions – argues the first defendant – there is in fact no prima facie case made out for the direction sought by the applicant.

IA No.4720/2008 in CS(OS) No. 700/2008 Page 5

12. It is argued that the authorities on the effect of Section-112 are uniform, from the decision in Goutam Kundu onwards. Reliance in this context is placed upon the judgment reported as Banarsi Dass v. Mrs. Teeku Dutta and Anr., (2005) 4 SCC 449. In that case, the Supreme Court relied upon previous decision and held in the following terms: – “13. In Dukhtar Jahan (Smt.) v. Mohammed Farooq: 1987 Cri LJ 849 this Court held:

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 1089 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.”

XXX XXX XXX

In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so choose, can also adduce evidence to oppose the grant of succession certificate. The trial court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA test was conclusive. This is not a correct view. It is for the parties to place evidence in support of their respective claims and establish their stands. DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given, as was noted in Goutam Kundus case (supra). Present case does not fall to that category. High Courts judgment does not suffer from any infirmity. We, therefore, uphold it. It is made clear that we have not expressed any opinion on the merits of the case relating to succession application.”

13. It is argued that the limited exception to the overriding presumption of conclusive proof of legitimacy prescribed by Section 112 was again emphasized in Shyam Lal @ Kuldeep v. Sanjeev Kumar and Ors., AIR 2009 SC 3115 where it was held that: –

IA No.4720/2008 in CS(OS) No. 700/2008 Page 6 “20. In Smt. Kanta Devi and Another v. Poshi Ram AIR 2001 SC 2226, this Court held as under:

“Section 112 which raises a conclusive presumption about the

paternity of the child born during the subsistence of a valid marriage, itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said 13 outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted.”

21. In the impugned judgment, the High Court observed that in the present case admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her marriage with the deceased Balak Ram. Therefore, in the absence of cogent and reliable evidence as to non-access on the part of the deceased Balak Ram, presumption under Section 112 of the Indian Evidence Act would be available and it will have to be held that plaintiff and defendants are sons of deceased Balak Ram.

22. On ground of public policy, it is undesirable to enquire into the paternity of a child whose parents “have access” to each other. The presumption of legitimacy arises from birth in wedlock and not from conception.”

14. The decision in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & Anr., AIR 2010 SC 2851 was cited to say that the Court should never as a rule grant applications directing one party or the other to undergo DNA test. In that case, the Supreme Court considered the previous ruling in Shardas case in the context of a submission that it conflicted with the reasoning in Goutam Kundus case and held as follows: “13. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires. The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, 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 is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course

IA No.4720/2008 in CS(OS) No. 700/2008 Page 7 or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of `eminent need’ whether it is not possible for the court to reach the truth without use of such test.

14. There is no conflict in the two decisions of this Court, namely, Goutam Kundu (AIR 1993 SC 2295: 1993 AIR SCW 2325) and Sharda (AIR 2003 SC 3450: 2003 AIR SCW 1950). In Goutam Kundu, it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test. In the case of Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA can be given by the court only if a strong prima facie case is made out for such a course. Insofar as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA. Looking to the nature of proceedings with which the High Court was concerned, it has to be held that High Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court over-looked a very material aspect that the matrimonial dispute between the parties is already pending in the court of competent jurisdiction and all aspects concerning matrimonial dispute raised by the parties in that case shall be adjudicated and determined by that Court. Should an issue arise before the matrimonial court concerning the paternity of the child, obviously that court will be competent to pass an appropriate order at the relevant time in accordance with law. In any view of the matter, it is not possible to sustain the order passed by the High Court.”

15. A later decision of the Supreme Court reported as Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., 2010 VI AD (SC) 478, which relied on and cited all the previous judgments on the issue, was placed before the Court. It was argued that the presumption under Section-112 can be displaced by strong preponderance of probability of evidence and not merely by balance of probabilities, as the law has to lean in favour of an innocent child and avoid her (or him) from being bastardized. To the same effect, the decision of Single Judge of this Court in Tiku Datta v. State, AIR 2004 Delhi 2005 was relied upon.

IA No.4720/2008 in CS(OS) No. 700/2008 Page 8 Presumption of legitimacy

16. The presumption of legitimacy of a child born during the subsistence of a lawful wedlock is a conclusive one and can only be rebutted in cases of non-access on the part of either spouse. This emerges from a joint reading of Sections112 and 4 of the Indian Evidence Act. Both the said provisions are reproduced below:

“112. Birth during marriage, conclusive proof of legitimacy.- The fact 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.

.. .. .

4. ” May presume.”- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it: “Shall presume.”- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved: “Conclusive proof.”- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.”

17. In a matter concerning the legitimacy of a child therefore, the Court has to confine itself to determining if there was a “lack of access” to either spouse (to a marriage). The legislative intent behind this (now seemingly archaic) provision is directed towards safeguarding the interests of the child and protecting it from being bastardized in the event that his paternity is in question. The issue here is to what extent, is the presumption (of legitimacy) attracted in paternity action which seeks a contrary declaration, i.e. that an individual is the biological (as opposed to the legal/legitimate) father of another, and the extent of Courts powers to direct the defendant to undergo DNA testing.

Position in India regarding DNA tests

18. Scientific evidence such as the results of Deoxyribonucleic Acid (DNA) tests are under Indian law to be evidence of ones paternity/lineage in that these tests can accurately determine whether or not the persons are biologically related. Such tests, however, have little relevance in a

IA No.4720/2008 in CS(OS) No. 700/2008 Page 9 proceeding to determining the legitimacy of a child. In the case of Banarsi Dass (supra), it was held:

“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 a 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 irrefutable. 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 bastardised 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.”

19. The above case dealt with a situation where the husband was resisting parenthood of the child. The issue here is in the context of a situation where the child seeks a declaration to the effect of ascertaining his paternity, even at the cost of bastardizing himself. The Court emphasized that DNA test is not to be directed, as a matter of routine and only in deserving cases could such a direction can be given. On this point, the Supreme Court, in the case of Goutam Kundu (supra) observed,

“The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the consideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do. The Court exercises protective jurisdiction on behalf of an infant.”

20. This Court notes that the above decisions are authorities in matters where it is the father who is resisting parentage at the cost of bastardizing the child. The same rationale does not however, apply, in situations where the child, who, on attaining adulthood , moves the Court for a declaration to determine his/her parentage, as in this case. There would then be no question of protective jurisdiction of the Court since the declaration sought is on his/her behalf about the true paternity, as opposed to the legitimacy ordained by law. It is true that courts have not come

IA No.4720/2008 in CS(OS) No. 700/2008 Page 10 across an occasion to draw this distinction since invariably the interests of the child has demanded () that its legitimacy should not be jeopardized. The issue of applicability of Section 112 has to be seen from a different trajectory than that in the decided cases; no decision, as yet, with a comparable fact-situation where the offspring of parents, born during the subsistence of their marriage, sought a paternity declaration that another man (and not his mothers husband) was his father, is discernable. Therefore, where it can be established that the husband is not the father of the child, through scientific tests conducted upon them voluntarily, the presumption of Section112 can stand rebutted, prima facie. On this presumption, it was observed by the Supreme Court in Goutam Kundu (supra)

“It is a rebuttable presumption of law that a child born during the lawful 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 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 bases of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.”

Development in statute law in India

21. Section 14 of the Family Courts Act, 1984 enacts if any evidence which would otherwise not be relevant/admissible under the Evidence Act, assists the Court, may be both relevant and admissible in such proceedings. Therefore, while the presumption under Section 112 of the Evidence Act renders the results of such tests futile as to the legitimacy of the child, the relevance of such tests cannot be disregarded, in regard to matters and disputes covered by the Family Courts Act, and triable under it. Section 7 of the Act provides for jurisdiction of the Court in this respect:

“7. Jurisdiction. – (1) Subject to the other provisions of this Act, a Family Court shall-

Explanation -The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely:

IA No.4720/2008 in CS(OS) No. 700/2008 Page 11 a suit or proceeding between the parties to a marriage for decree of a nullity marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

a suit or proceeding for a declaration as to the legitimacy of any person;

a suit or proceeding for maintenance; a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor .

Xxxxxxxxxxxx xxxxxxxxxxx

“14. Application of Indian Evidence Act, 1872.-A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion. assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872).”

22. The entire focus of attention and legislative concern in enacting Section 112 with a near impregnable presumption of legitimacy was premised on the welfare or best interests of a child, and societys assurance that a child born to a woman after the marriage, should not except under limited circumstances be exposed to any inquiry about who was his true father. This overarching concern also was aimed at protecting a woman from allegations of unchastity, and the resultant harassment that she could be subjected to in legal proceedings. While those concerns are as real today as they were when the provision was enacted, nevertheless subsequent changes in womens status, the rights enjoyed by them, scientific developments and advancements, and changes in legal provisions which recognize a childs right to know its biological antecedents, cannot be ignored. Another related aspect is that when the provision was enacted, women had no property rights; in England, they were not even enfranchised. The law was conceived and put in place by a colonial power. Its possible intersection and perhaps tension

IA No.4720/2008 in CS(OS) No. 700/2008 Page 12 with paternity actions, and the impact such a presumption could have on those proceedings, was not conceived. This issue assumes importance in the present case where it is the child who seeks a declaration to ascertain his parenthood. The Courts present concern is as to the paternity of the plaintiff and whether the Defendant is his biological father. Here, there is a legitimate interest of the child in the knowledge of his true parents. Such a child has a right to know, and to be afforded the company of his true parents, unless such knowledge is detrimental to his interest.

International Covenants and developments in other jurisdictions

23. The right of the child to know of her (or his) biological antecedents is now recognized internationally as being of critical importance. Major international instruments such as the UN Declaration on Human Rights have recognized the rights of a child irrespective of her (or his) legitimacy and the Convention on the Rights of Child, 1990 has expressly specified a right to knowledge of parenthood. Parts of the Convention on the Rights of Child dealing with this aspect are produced as follows:

“Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents .”

24. The Convention therefore, specifically requires that as far as possible, the State must enable the child to know of his true paternity. A mention in this regard may also be made of the developments in the United States and United Kingdom where this right has had a crucial influence on decisions to permit the conduct of reliable scientific tests on the mother, the child and the party alleged to be the father in order to determine the paternity of the child. Excerpts from the S.532 McKinneys Family Courts Act in the United States are reproduced:

” 532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests:

(a) The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court’s own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an

IA No.4720/2008 in CS(OS) No. 700/2008 Page 13 accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman… If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a child pursuant to this article and article four of this act..”

25. A childs right to know of her or his biological parentage has had a critical influence also many developments in Europe that have lead to lifting the anonymity of a donor in assisted pregnancies and in case of sperm donors. Such donors remained anonymous in Europe till the 1980s. However, later developments mark a shift from the anonymity based approach, and the Courts, tend to lean in support of the childs right to know her or his biological antecedents. Similar laws have been passed in many countries all over the world (such as Sweden in 1985, following which almost all of Europe with the latest addition of the United Kingdom has followed suit). In the Human Fertilization and Embryology Authority Regulations 2004, the children in United Kingdom have the right to obtain information about their donors after they reach the age of 18. The age prescription, in such regulations, are seen as a check towards protecting the childs interests in legitimacy. These developments all over the world indicate that there is a very tenable argument in the childs interests that support its right to know the truth of its origin.

26. A distinction has to be drawn here between legitimacy and paternity of the child. Section 112 of the Act was a provision enacted by the British directed at safeguarding the interests of the child by securing its legitimacy. This provision was modeled around a rigid English law system, which may be aptly summarized in the majority opinion in the case of Russel v. Russel, (1924) AC 687 where it was held that neither the declarations of the wife, nor her testimony that the child was the child of a man other than her husband were admissible as evidence to prove or disprove paternity. Similarly, the evidence of the husband that he was not

IA No.4720/2008 in CS(OS) No. 700/2008 Page 14 the father of the child was also inadmissible in that regard. However, it was the dissenting opinion of Lord Summers that gained more importance over the years. He held that: “in the administration of justice nothing is of higher importance than that all relevant evidence should be admissible and should be heard by the tribunal that is charged with deciding according to the truth.”

27. The law in England is now guided by the Family Reforms Act, 1969 (later replaced by the 1987 Act); it enables the Court to draw a distinction between parentage and paternity thus allows conduct of tests to determine who is the biological father of the child. In highlighting the importance of the right of the child to know the truth of its paternity the court, in W. v. W, 1973 (1) WLR 1115 explained:

“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of the truth.”

28. English law on this point has no doubt undergone a major change. No such distinction has been statutorily created in Indian law and it is not in this Courts domain to do so. However, this Court is of the opinion that the object of Section 112 of the Act was to determine legitimacy and not paternity. Such an interpretation to this provision would be in accordance with both the UN Declaration on Human Rights and the Conventions on the Rights of Child. India is a ratifying party to both these international instruments and as such, they constitute an obligation on the State under Article 51(c) of the Constitution. Where the provisions of law may be interpreted in different ways, the law is to be interpreted in a manner that would ensure compliance with the States international obligations, if it is consistent with provisions of Part III of the Constitution of India. Such a construction assumes special importance in cases where human rights of the individuals are concerned. The Supreme Court has sought to use this rule of construction to harmonize Indias domestic laws with its international obligations in matters dealing with valuable human rights on many instances. This rule assumes relevance in instances where there has either been legislative inactivity leading to a lacuna in the law, or a law has become so archaic that it is not in conformity with the existing system of rights.

29. In the Case of Vishakha v. State of Rajasthan, ( 1997 ) 6 SCC 241 for instance, the Court sought to take steps towards providing valuable human rights to women where the legislature

IA No.4720/2008 in CS(OS) No. 700/2008 Page 15 had refrained from doing so in order to harmonise Indias international obligations with treaty law. In the case of P.U.C.L v. Union of India, (1997) 1 SCC 301 then, the Apex Court held:

“It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law.”

30. This Court cannot disregard the interests of the child in this regard to know of his biological roots. This right to know can be enforced through reliable scientific tests, absent any overriding concern that directing such tests are not in the best interests of the child. There is of course, the vital interests of child to not be branded illegitimate; yet the conclusiveness of the presumption created by the law in this regard must not act detriment to the interests of the child. If the interests of the child are best sub-served by establishing paternity of someone who is not the husband of her (or his) mother, the Court should not shut that consideration altogether. The protective cocoon of legitimacy, in such case, should not entomb the childs aspiration to learn the truth of her or his paternity. The Court is of opinion that legitimacy and paternity are both valid interests of the child that may be accorded recognition under Indian law without prejudice to each other. While legitimacy may be established by a legal presumption, paternity has to be established by science and other reliable evidence. In this specific matter, the plaintiff has sought a declaration, as to his paternity. Any such declaration will have no bearing upon his legitimacy, which as such, will continue to be governed by the conclusive presumption in Section 112.

31. Indian law casts an obligation upon a biological father to maintain his child; does not disregard the rights of an illegitimate child to maintenance. The Hindu Adoptions and Maintenance Act, 1956 for example, specifically provides for maintenance of illegitimate children in Sections 20, 21 and 22 of the Act. The relevant provisions are reproduced below:

“20. Maintenance of children and aged parents.- (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or inform parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

IA No.4720/2008 in CS(OS) No. 700/2008 Page 16 (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Explanation.- In this section “parent” includes a childless step-mother.

21. Dependants defined.- For the purposes of this chapter “dependants” means the following relatives of the deceased.

xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx

(viii) his or her minor illegitimate son, so long as he remains a minor.

(ix) his or her illegitimate daughter, so long as she remains unmarried.

22. Maintenance of dependants, – (1) Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.”

(emphasis supplied)

32. Similarly, the Code of Criminal Procedure enacts an “umbrella” provision that imposes a legal duty upon a person to provide maintenance for his children, irrespective of whether such child is legitimate or otherwise:

“Section 125 – Order for maintenance of wives, children and parents

(1) If any person having sufficient means neglects or refuses to maintain.-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or ”

(emphasis supplied)

IA No.4720/2008 in CS(OS) No. 700/2008 Page 17

33. The right to maintenance therefore is an inalienable right of a child, even if illegitimate, under Indian law. In circumstances where the child cannot be maintained, it will in fact be in its best interests to ascertain the childs true paternity to ensure that he or she can avail the benefit of maintenance. Thus, children of women born as a result of forced or non-consensual sexual relations, or either due to the social status, or dominant economic power of the biological father (or as a result of rape of a married woman) even during the subsistence of the womans marriage, can claim their right to maintenance. The domain of property rights is an entirely different matter and concerns only legitimate children, which will not be affected, by a finding relating to the paternity of the child.

34. It may now be necessary to tie the disparate threads of reasoning together, at this stage. Legitimacy and paternity are two distinct concepts in law. Section 112 of the Indian Evidence Act deals only with legitimacy, and not paternity. The idea behind this provision was to establish a conclusive presumption in favour of the legitimacy of a child to not subject him or her to the stigma of being a bastard. The said presumption, however, is conclusive only as regards the legitimacy of the child and not its paternity. Unless the Court feels in certain circumstances that it is against the interests of the child to know of its paternity, the Court is justified in ascertaining the paternity of the child through reliable scientific tests such as DNA tests. This is of course, subject to the caveat (on account of the existing structure of Section 112) that such tests can be directed, after the Court is prima facie satisfied on the basis of evidence on the record that there was no access (to the mother) at the relevant time. A finding as regards the paternity of the child through such means will not prejudice the conclusiveness of the presumption established by Section 112 of the Evidence Act. Such a child, who has sought a declaration by the Court towards ascertaining his or her paternity, may continue to be a legitimate child in law under the presumption of Section 112. Such a construction is in line with international instruments to which India is a ratifying party and the widely cherished right to know of the child. A finding of paternity would, in certain circumstances, also enable the child to avail of maintenance under S.125 of the Cr.P.C. 1973, and other provisions of law.

35. The Court would now examine if a third party (to a marriage, like the first defendant here) may be compelled to undergo scientific tests of the nature of giving blood samples for the

IA No.4720/2008 in CS(OS) No. 700/2008 Page 18 purpose of DNA testing. The case of Goutam Kundu (supra) provides us with assistance here. In this case, the Court held that

“1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.

3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”

36. While the Court here advised that such tests should not be conducted in a routine manner, it did not ban their conduct, upon the third party, altogether. It held that ordering a test upon a person to determine biological relationships between him and the plaintiff would not attract the sanction of Article 21 of the Constitution of India. The Law Commission of India in its 185th Report further made certain observations in this regard and recommended modifying S.112 as follows:

Birth during marriage conclusive proof of legitimacy except in certain cases “112 The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days,

(i) after the marriage was declared nullity, the mother remaining unmarried, or

(ii) after the marriage was avoided by dissolution, the mother remaining unmarried,

shall be conclusive proof that such person is the legitimate child of that man, unless

(a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been

begotten; or

(b) it is conclusively established, by tests conducted at the

expense of that man, namely,

(i) medical tests, that, at the relevant time, that man was

impotent or sterile, and is not the father of the child;

or

(ii) blood tests conducted with the consent of that man and

his wife and in the case of the child, by permission of

IA No.4720/2008 in CS(OS) No. 700/2008 Page 19 the Court, that that man is not the father of the child;

or

(iii) DNA genetic printing tests conducted with the consent of

that man and in the case of the child, by permission of

the Court, that that man is not the father of the child;

and

Provided that the Court is satisfied that the test under sub-clause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to accepted procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that that man is not the father of the child.

Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him.

Explanation I: For the purpose of sub clause (iii) of clause (b), the words DNA genetic printing tests shall mean the tests conducted by way of samples relatable to the husband and child and the words “DNA” mean Deoxyribo-Nucleic Acid.

Explanation II: For the purposes of this section, the words valid marriage shall mean a void marriage till it is declared nullity or a voidable marriage till it is avoided by dissolution, where, by any enactment for the time being in force, it is provided that the children of such marriages which are declared nullity or avoided by dissolution, shall nevertheless be legitimate.”

37. The Court notes that the above Law Commission proposal does not allow a third party to be compelled to undergo such tests against his liberty and is confined in its applicability to the husband of the mother. However, as the Court in Sharda and Jena (Supra) observed, there is no violation of the right to life, or privacy, or such third party, in directing a DNA test, to be undergone by him. The three Judge Bench in Sharda (supra) stated in no uncertain terms that a direction, (after taking into consideration all relevant facts), to the person, to undergo such a test is not an invasion of his right to life. Bhabani Prasad Jena (supra), after noticing all the previous judgments, including Goutam Kundu and Sharda, on the point, affirmed the power of the Court to direct a DNA test by one of the parties, and stated that it must be exercised with caution, after weighing all “pros and cons”, the evidence, and satisfying itself if the “test of `eminent need'” for such an order, is fulfilled. This Court is therefore, bound by those principles.

IA No.4720/2008 in CS(OS) No. 700/2008 Page 20

38. The facts here are that the plaintiff is the son of the second defendant, who is his mother. She was married to Sh. B.D. Sharma, who is not a party to the proceeding. In support of his claim, the plaintiff relies not only on pleadings but on more than a hundred photographs, taken from the time of his childhood, several of them with the first defendant. Many of these include occasions like birthday parties, festivals, and some even capture moments where they (the plaintiff and the first defendant) shared moments together. To be fair to the first defendant, there can be explanations; yet prima facie there appears to be some consistency or pattern in his behavior; he is definitely seen as a close friend of the family, with a special fondness for the plaintiff. The plaintiff alleges that the defendant used to see him very frequently, and he had access, but later he was denied such access, to the first defendant and that the last time he could meet the plaintiff was in 2005.

39. The first defendant does not deny knowing the plaintiffs mother, i.e. the second defendant. The latter has filed an affidavit saying that though she was married to B.D. Sharma, they stopped living together since 1970. She also relies on certified copies of divorce proceedings, to say that her marriage with him had been dissolved. The first defendant points that these documents establish that the second defendant and her husband, B.D. Sharma, were living in the same building, albeit on separate floors. This according to the first defendant is destructive of the plaintiffs plea about non access of B.D. Sharma to the second defendant. It is also submitted that if the Court were to direct that blood samples of the first defendant should be given, for the purpose of DNA testing on the strength of these materials, grave prejudice would occur to him. It is urged that such an order is fraught with serious consequences, because two people who are parties to a marriage, can collude, and allege that their child is the natural or biological son or daughter of another, with the evil motive of grabbing his property, or tarnishing his reputation.

40. Documents have been filed by the plaintiff, on the record to establish that both Sh. B.P. Sharma and Mrs. Ujjwala Sharma were estranged in 1970 and subsequently their marriage was dissolved. Both of them have filed affidavits in this regard. The Court, at this stage, cannot disbelieve them. Additional evidence has been placed on the record, in the form of a DNA test report conducted on the plaintiff and Sh. B.P. Sharma that categorically states that he cannot be the father of the plaintiff. This report has been supported by his affidavit, as well as that of the plaintiff, stating that such tests were conducted upon them voluntarily. The Court, at this stage

IA No.4720/2008 in CS(OS) No. 700/2008 Page 21 has no reason to disbelieve their statements, on affidavit, or results of the test. In this case, the plaintiff is a major, capable of taking his decisions, and there is no question of his welfare being adversely affected, by an order, that would facilitating determination of his true biological roots. The facts alleged by him, his mother, and his (legitimate) father, are that the first defendant is the plaintiffs biological father. Therefore, he wishes the Court to declare his paternity. The Court therefore, has to deal with a situation where the plaintiff is seeking the relief, on the basis of his informed decision.

41. As far as the first defendants submission that incalculable harm would ensue if he is directed to undergo DNA testing is concerned, on the ground that doing so would be sanctioning the dubious motives of grasping individuals, who may collusively level false allegations, with a view to profit and extort from vulnerable persons, the Court notices that there are sufficient guidelines framed by virtue of the law declared in Goutam Kundu and Bhabani Prasad Jena, which the Court must follow;. these are:

(i) Existence of a fair degree of prima facie case (revealing non-access); (ii) welfare of the child;

(iii) A need to balance the rights of two competing claims, i.e. the one for paternity and the one for privacy (or autonomy), and direct a test if there is eminent need to do so.

42. Scientific tests on record have prima facie established that no biological relationship exists between the plaintiff and Sh. B.P. Sharma. These tests, on the strength of precedent, are not dismissive of the legitimacy of the plaintiff and are irrelevant in that regard. They, however, do indicate that B.P Sharma voluntarily subjected himself to such procedure, and further that he is not the plaintiffs biological father. This Court, as observed earlier is not concerned with the plaintiffs legitimacy , and is called upon to make a declaration in order to help him to ascertain his true biological roots. No doubt, there are possibilities that the first defendant is not the biological father; the Court cannot direct him to undergo DNA test on the assumption that he is the father, at the mere asking of the plaintiff. That is where, the other materials, such as the second defendant mothers affidavit, and photographs of the plaintiff, together with the first defendant, are relevant. They do, taken cumulatively with such the DNA test results, indicate a strong prima facie case, suggesting “eminent need” to issue the directions.

IA No.4720/2008 in CS(OS) No. 700/2008 Page 22

43. So far as the first defendants argument of collusion, and the further submission, that the mere fact that the DNA test report points to Sh. B.P. Sharma not being the biological father, in turn nowhere indicates his involvement, is concerned, the Court is of opinion that this is precisely where an overall prima facie analysis of the materials, is necessary. These overall materials are on record in the form of photographs some pertaining to special personal occasions, and others showing the plaintiff and first defendant in public functions, as well as Ujjwala Sharmas affidavit, which prima facie disclose a strong probability that fulfils the “eminent need” to direct such DNA testing of the first defendants blood samples. The defendants arguments facially do not point to any prejudice to him which outweigh the strong prima facie case, and eminent need for the test. This is necessary, in the interests of justice both to ascertain the truth, and also possibly rule out the first defendants paternity altogether.

44. The previous discussion may be summarized as follows:

(i) The conclusive proof standard mandated by Section 112 of the Evidence Act, read with Section 4, admits an extremely limited choice before the Court, to allow evidence of “non access” to a wife by the husband, who alleges that the child begotten by her is not his offspring; it is designed to protect the best interests of the child, and his legitimacy

(ii) A “paternity” action by the son or daughter of one, claiming the defendant to be his or her biological father, filed in Court, particularly after the plaintiff as in this case, attains adulthood, or claims paternity, for other reasons, (such as non-consensual sexual relationship the basis of facts, and on the basis of the childs rights/either under Section 125 Cr.PC, or in a suit for declaration or for maintenance) cannot be jettisoned by shutting out evidence, particularly based on DNA test reports, on a threshold application of Section 112; the Court has to weigh all pros and cons, and, following the ruling in Kundu and Jena (supra), on being satisfied about existence of “eminent need” make appropriate orders;

(iii) The development of statute law through enactment of the Hindu Adoptions and Maintenance Act, 1956, the Criminal Procedure Code, 1973 and the Family Courts Act, 1984, read together with a childs right to knowledge about her or his natural parentage has added a

IA No.4720/2008 in CS(OS) No. 700/2008 Page 23 new dimension where the concept of paternity or a claim, cannot be ousted by Section 112 and concerns of legitimacy, underlying it.

(iv) On the facts of this case and the materials on record, the Court is satisfied that there is eminent need to direct the first defendant to furnish his blood samples, for the purpose of DNA testing;

45. In view of the above conclusions, the application has to succeed. The parties or their counsel are directed to appear before the Joint Registrar on 8th February, 2011. The Joint Registrar shall obtain particulars and details to facilitate the DNA testing of the first defendant; the said defendant is directed to furnish such sample on a date and time to be designated by the Joint Registrar, by taking or drawing appropriate samples after ascertaining the details from the concerned accredited agency i.e. Centre for Cellular & Molecular Biology (Constituent Laboratory of the Council of Scientific Industrial Research, Government of India, Habsiguda Uppal Road, Hyderabad 500 007, Andhra Pradesh, India. The said institution shall furnish the report to this Court within six weeks of receiving the samples.

I.A. No.4720/2008 is allowed in the above terms

CS(OS) No.700/2008

List the suit before Court on 6th May, 2011, for further proceedings.

December 23, 2010 (S.RAVINDRA BHAT) JUDGE

IA No.4720/2008 in CS(OS) No. 700/2008 Page 24

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