Rajbir Kaur vs Sukhwinder Singh

Alok Singh, J.—Present petition is filed challenging the order dated 7.10.2008, 10.10.2008 and 24.4.2009, whereby DNA Test was

directed to be done on Sukhwinder Singh-Respondent-husband as well as on Manjinder Singh to find out the paternity of Manjinder Singh, son of

parties.

The sole question involved in this case is as to whether DNA Test can be directed to be done on the minor to find out the paternity to prove the

adultery on the part of the wife. The Hon''ble Apex Court in the matter of Kanti Devi and Anr. v. Poshi Ram reported in 2001 (5) S.C.C. 311 in

paragraph No. 1 has observed as under:

We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic

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 conclusive-ness of Section 112 of the 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 unrebuttable. 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.

Learned Single Judge of this Court in the matter of Kuldeep Singh v. Joginder Kaur and Anr. reported in 2006 (4) R.C.R. 572 in paragraph

No. 4 has observed as under:

There is no merit in the submission. The order granting maintenance was passed on 9.11.1993. The event which took place prior to the said

date cannot be put in issue in subsequent proceedings and that too after eight years. u/s 112 of the Evidence Act, 1872, birth during marriage is

conclusive proof of the legitimacy of the child. In Dwarika Prasad Satpathy Vs. Bidyut Praya Dixit and Another, and Smt. Kanti Devi and Another

Vs. Poshi Ram, , it was held that the Court has to keep in view the provisions of Section 112 of the Evidence Act and it is only the party who

disputes the legitimacy of the child, has to undergo the DNA test and not the mother of the child who is not disputing the legitimacy of the child

unless a clear prima facie case is made out. As held in Sharda v. Dharmpal 2003 (2) RCR 795 (SC) and Goutam Kundu Vs. State of West

Bengal and another, . in a given case, a direction for an appropriate test could be issued but such a direction could not be issued mechanically on a

mere allegation of illegitimacy of child. Such a direction ought to be issued if it was in the interest of child. It was also observed in Sharda (supra)

that power to direct a medical test should be issued only if a prima facie case was independently made out.

This Court is of the view that DNA test can be ordered if it is for the benefit/welfare of the child but DNA test should not ordinarily be ordered

in matrimonial dispute between the husband and wife to prove the ground of adultery against the wife. As per Section 112 of the Evidence Act, if

birth of the child took place during the continuance of marriage, then it is the conclusive proof of legitimacy of the child. Law does not allow taking

test on the minor to prove that child is the bastard.

In view of the above, impugned orders cannot be sustained in the eye of law. Petition is allowed. Impugned orders are quashed.