DNA tests cannot be ordered to prove ‘bald allegations’ of infidelity: Delhi HC summarizes principles for ordering DNA test [Read Judgment]

In an elaborate judgment which discusses principles and precedents governing consideration of application seeking direction for a DNA test, a Division Bench of Delhi High Court has held that the strong presumption under Section 112 of the Indian Evidence Act of legitimacy of a child born during marriage can only be rebutted by “strong, clear, satisfying and conclusive” evidence of “non-access”.

The Bench comprising of Justices Gita Mittal and I.S.Mehta also observed that DNA test cannot be ordered to gather evidence on behalf of a party who has made a bald allegations of infidelity.

The Family court, upon application by Husband, had allowed an application seeking DNA test of the child. On Appeal by wife, the Delhi High Court, setting aside the order of Family court, observed that, the Husband has made repeated admissions of paternity in his pleadings, affidavit and his statement on oath in support on judicial record and also in public records, which militate against a prima facie case in his favour.

This judgment of Delhi High Court exhaustively deals with the case-laws on the subject. The Court has summarized principles governing the consideration of applications seeking DNA tests.

WHEN TO MAKE DIRECTION FOR COMPELLING A MEDICAL EXAMINATION OR A DNA TEST TO ESTABLISH ANY FACT

The Court observed as follows

• Applications for directions to the other party to appear or produce off springs or siblings for DNA testing are made by parties seeking to establish, either, the factum of the relationship, or, their challenge to the relationship. It could be by a person claiming parentage or by a person challenging paternity of another


• the court in an appropriate case, can direct medical examination of a party to matrimonial litigation as well provided that the applicant seeking such examination has a “strong prima facie” case and has placed “substantial material” on the court record in support of his/her case. (AIR 2003 SC 3450,   Sharda v. Dharampal)


• The presumption of legitimacy thus cannot be disturbed by “slender” materials under “compulsive and clinching” facts are brought to shake the presumption and call for a DNA examination. Proof of non-access was essential ((2005) 4 SCC 449 Sh. Banarasi Dass v. Mrs. Teeku Datta)


• Conclusiveness of the presumption under Section 112 of the Indian Evidence Act, therefore, cannot be disturbed lightly. (AIR 2010 SC 2851, Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & Anr)

STANDARD OF PROOF REQUIRED TO DISPLACE CONCLUSIVE PRESUMPTION

Referring to Kamti Devi v. Poshi Ram (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors, the Court said: “The presumption under Section 112 of the Indian Evidence Act can be displaced only by such evidence which meets a standard higher than preponderance of probabilities, and not by a mere preponderance of probabilities. The strong presumption under Section 112 of the Indian Evidence Act of legitimacy of a child born during marriage therefore can only be rebutted by “strong, clear, satisfying and conclusive” evidence of “non-access”.

‘ACCESS AND NON-ACCESS’

The Court observed: “Cohabitation of the parties is not an essential or only concomitant to establish “access”; that “unnatural conduct” of the party or the conduct at the time the child was conceived, personal hostility would be pertinent circumstances. Parties being “in touch with each other”, “residing for a short period in reasonable proximity” during the period when the child was conceived are also material circumstances. In fact, at the final consideration, the husband has to conclusively establish that there was no access or opportunity at all for a liaison with or sexual intercourse between the parties. As delineated in Kamti Devi, the husband who challenges paternity of a child born during the subsistence of the marriage, has to establish with convincing evidence “not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time”.”

PRINCIPLES TO BE FOLLOWED WHILE CONSIDERING APPLICATION FOR DNA EXAMINATION

The Court summarized the principles referring to precedents as follows.

• A rebuttable presumption of legitimacy is attached to a child born of a married woman during a subsistence of marriage or within 280 days of its severance (Ref.: Section 112 of the Indian Evidence Act; AIR 2001 SC 2226, Kamti Devi v. Poshi Ram – para 11; (2005) 4 SCC 449, Banarsi Dass v. Teeku Datta – para 10; AIR 2009 SC 3115, Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors. – para 10)


• The DNA test is not to be directed as a matter of routine. Such direction can be given only in deserving cases (Ref.: (2005) 4 SCC 449, Banarsi Dass v. Teeku Datta – para 14).


• 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 test is eminently needed. (Ref.: AIR 2003 SC 3450, Sharda v. Dharampal – para 80 ; AIR 2010 SC 2851, Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & Anr. - Para 13)


• (iv)(a)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. (Ref.: (1993) 3 SCC 418:AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal & Anr.) (iv)(b)The court would exercise discretion, only after balancing the interests of the parties and on consideration as to whether for a just decision in the matter the DNA test is imminently needed i.e. as to whether it is not possible for the court to reach the truth without use of such test. For so concluding, the court has to consider materials placed by both parties and the test shall not be ordered in routine for a roving enquiry.


• “Access” and “non-access” mean the existence or nonexistence of opportunities for sexual intercourse; it does not mean actual “cohabitation” (Ref.: AIR 1934 PC 49, MAT.APP.(FC)No.17/2016 Page 33 of 95 Karapaya Servai v. Mayandi ; (1993) 3 SCC 418:AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal & Anr. – para 24)


• In a civilised society it is imperative to presume the legitimacy of a child born during continuation of a valid marriage and whose parents had “access” to each other (Ref.: (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors. – para 42)


• Burden of proving illegitimacy is on the person who makes such allegation (Ref. : para 10 of (2005) 4 SCC 449 Sh. Banarasi Dass v. Mrs. Teeku Datta)


• The party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. (Ref.: AIR 2001 SC 2226, Kamti Devi v. Poshi Ram – para 10)


• The presumption under Section 112 of the Indian Evidence Act can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities or on the basis of slender material. The standard of proof in such cases must be of a degree in between the preponderance of probability and proof beyond reasonable doubt by way of abundant caution and has a matter of public policy (Ref.: AIR 2001 SC 2226, Kamti Devi v. Poshi Ram – para 11 & 12)


• The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt (Ref.: (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors. – para 39) MAT.APP.(FC)No.17/2016


• The verdict of displacement of the presumption shall not be rendered on the basis of slender materials. 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 (Ref.: (2001) 5 SCC 311, Kamti Devi v. Poshi Ram – Para 11; (2005) 4 SCC 449, Banarsi Dass v. Teeku Datta – para 13).


• The courts must be inclined towards upholding the legitimacy of the 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 (Ref.: Dukhtar Jahan v. Mohd. Farooq [(1987) 1 SCC 624).

PRIMA FACIE CASE

The Court referred to AIR 1958 SC 79, Martin Burn Ltd. v.   R.N. Banerjee, which had observed thus: “27. …A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co., Ltd. [(1952) Labour Appeal Cases 490].

HUSBAND ADMITTED ACCESS

In the instant case, child was born in October 2013 and the husband in his pleadings had submitted “from the start of the year 2013, even the access to cohabit was denied”- Referring to this statement, the Court observed: “ It needs no elaborate detailing or consideration of pleadings that “rare entity”, “pathetic”, “hardly cohabited”, “hardly” cannot be equated to the categorical assertion of no access which is required by law to displace the presumption under Section 112 of the Indian Evidence Act. Consequently it was not even the husband’s clear and unequivocal case in the divorce petition that he had no access to his wife at the time when the child of the parties could have been conceived.”

The Court further held: “‘H’ has failed to make out a prima facie case justifying an order for compelling Baby ‘X’ to give a sample for a DNA examination. The repeated admissions of paternity by ‘H’ in his pleadings, affidavit and his statement on oath in support on judicial record militate against a prima facie case in favour of ‘H’ for making the order prayed for. The husband ‘H’ has made admissions of paternity in public records of the Registrar of Births as well as bank record. No explanation was tendered before the ld. Family Court Judge or before us. The respondent no.1 has concealed material facts; is guilty of mis-statement before the Family Court and his conduct post-conception of the child do not support a prima facie case in his favour justifying the impugned order. The respondent no.1 has also not established imminent need for the order or that such order was at all necessary for a just decision of the case.”

CONSTITUTIONAL RIGHTS OF THE CHILD IN MATRIMONIAL LITIGATION SHOULD BE PROTECTED INDEPENDENTLY

Referring to “Guidelines of the Committee of Ministers of the Council of Europe on child – friendly justice”, the Court observed: “the court would be bound to appropriately appoint a guardian ad litem or an amicus curiae to ensure the interest of the child which has to include effective representation to him/her, depending on the facts and circumstances of the case”

DNA TESTS CANNOT BE ORDERED TO GATHER EVIDENCE FOR BALD ALLEGATIONS OF INFIDELITY

Negating the contention that DNA test is the only manner of establishing a plea of infidelity by one spouse against the other, the Court observed: “What if there were no child from the alleged infidelity or the extra marital affair of the wife? What about a case where the wife alleges infidelity against the husband, with or without there being a child from such relationship? The husband (or the wife) has to stand on his own feet and establish the allegedly infidelity as per law. Accepting the proposition urged by Mr. Gupta would in effect, tantamount to laying down the principle that a spouse had to merely make an allegation of infidelity (or mental illness or impotency), without anything more, and courts would have to mandatorily direct scientific (or medical) examination. Accepting the proposition urged by Mr. Gupta would in effect, tantamount to laying down the principle that a spouse had to merely make an allegation of infidelity (or mental illness or impotency), without anything more, and courts would have to mandatorily direct scientific (or medical) examination. It is a first principle of procedural law that a party alleging a fact, must prove it. Binding judicial precedents noted above have laid down that a party must establish a strong prima facie case before a court would make an order for the scientific (or medical) examination, especially of the intrusive kind as a DNA examination. The court cannot conduct a fishing or roving inquiry for a party and a DNA test cannot be ordered to gather evidence on behalf of a party who has made a bald allegation, without anything more.”

Read the Judgment here.