Disputed Paternity and DNA Testing – A Study in the Indian Context

G.V.Mahesh Nath LL.M*,

Civil Judge, A.P. Judcial Services

Introduction:

In India, the presumption of child legitimacy is dealt under

Section 1121 of the Indian Evidence Act,1872. The Section provides
that 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 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.
The object behind such presumption is to prevent paternity and
legitimacy from being disputed except to the extent specified in the
Section.

The presumption under Section 112 when drawn conclusively

proof the legitimacy of a child. As to the meaning of Conclusive Proof,
one has to fall back to Section 4 of Indian Evidence Act, 1872 it state
that :

Section 4 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.
* Civil Judge, A.P. Judicial Services. Presently working as Principal Junior Civil Judge, Bodhan,
Nizamabad, Telangana State.
1 Section 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 eight days after its
dissolution, the mother remaining unmarried, shall be conclusive proof that he is
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.

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 Presumptions are rules of evidence through which the obligation
on the party may be discharged with help of presumption of law or fact
unless and until other party show a reasonable possibility of the non-
existence of the presumed fact. The “may' and “shall” presumptions
defined under Section 4 are rebuttable in nature as party against
whom “may” or “shall” presumption are drawn may led evidence to
rebutt such presumption. But in case of presumption as to conclusive
proof is concerned when once presumption is drawn no rebuttal is
allowed to dislodge such presumption.

With a conjoint reading of Section 112 and Section 4 of Indian

Evidence Act,1872, one gets an understanding that any child who is
born during the continuance of a valid marriage is presumed to be
legitimate child of parties to such marriage. Thus, a child being born
during subsistence of valid marriage is proved, the legal presumption
of legitimacy will arise, however the rider to Section 112 of Indian
Evidence Act,1871 state that “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.”

The courts before drawing presumption under Section 112

need to consider the defence of “no access” for the parties to the
marriage at any time when the child could have been begotten. When
once it is proved that a child is born during subsistence of valid
marriage and that parties to the marriage had access at the time when
the child was conceived, the presumption as to legitimacy of such
child is conclusively proved and rebuttal evidence can not be
permitted to dislodge the presumption raised under Section 112 of
Indian Evidence Act,1872 in view of Section 4 of Indian Evidence Act,
1872.

Early Precedents: DNA test not considered for proving “no-

access” under Section 112:

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 The Privy Council in decision between Karapaya Servai v.
Mayandi2, held, that the word 'access' used in Section 112 of the
Evidence Act, connoted only the existence of an opportunity for
marital intercourse, and in case such an opportunity was shown to
have existed during the subsistence of a valid marriage, the provision
by a fiction of law, accepted the same as conclusive proof of the fact
that the child born during the subsistence of the valid marriage, was a
legitimate child. The decision in Karapaya Servai's case was approved
by Apex Court in Chilukuri Venkateshwarly vs. Chilukuri
Venkatanarayana3.

In Goutam Kundu vs. State of West Bengal and another 4, the

Supreme Court held as under:

“(1) That Courts in India cannot order blood test as a matter of course.

(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.”

2 AIR 1934 PC 49
3 1954 SCR 424
4 (1993) 3 SCC 418
 The Supreme Court in Kamti Devi and another v. Poshi
5
Ram ,observed that “Section 112 itself provides an outlet to the party
who wants to escape from the rigour of that conclusiveness. The said
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. In other words, 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”.

Speaking on disputed paternity and DNA testing, the Apex Court

held that Section 112 of the Evidence Act was enacted at a time when
the modern scientific advancements with Dioxy Nucleric 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 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.

The Supreme Court noting that it 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. It was held that 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 not drawing presumption under Section 112
must be answered in the light of what is meant by access or non-
access in context of Section 112.

Going in line with the reasoning of Kamti Devi6, in Sham Lal @

5 AIR 2001 SC 2226

6 Kamti Devi v Posh Ram AIR 2001 SC 2226
Kuldeep vs. Sanjeev Kumar and others7, the Apex Court held as
under:

“Once the validity of marriage is proved then there is strong

presumption about the legitimacy of children born from that wedlock.
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.
Even the evidence of adultery by wife which though amounts to very
strong evidence, it, by itself, is not quite sufficient to repel this
presumption and will not justify finding of illegitimacy if husband has
had access. In the instant case, admittedly the plaintiff and Defendant
4 were born to D during the continuance of her valid marriage with B.
Their marriage was in fact never dissolved. There is no evidence on
record that B at any point of time did not have access to D.”

Later Precedents: Accepting DNA test as mode of proof for “no-

access” under section 112:

The rulings in Kamti Devi8 and Sham Lal9 where DNA test
were not considered to prove “no-access” under Section 112 of Indian
Evidence Act seems to have slowly given way for accepting the DNA
Test in case of disputed paternity by the Supreme Court in the later
cases. The Apex court in Bhabani Prasad Jena vs. Convenor
Secretary, Orissa State Commission for Women and another 10,
held as under:

“21. In a matter where paternity of a child is in issue before the court,

the use of DNA test is an extremely delicate and sensitive aspect.
One view is that when modern science gives the 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
7 (2009) 12 SCC 454,
8 Kamti Devi v Posh Ram AIR 2001 SC 2226
9 Sham Lal @ Kuldeep vs. Sanjeev Kumar and other(2009) 12 SCC
454,
10 (2010) 8 SCC 633
is that the court must be reluctant in the 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.

22. 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 test is eminently needed. DNA test in a matter relating to
paternity of a child should not be directed by the court as a matter of
course 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.

23. There is no conflict in the two decisions of this court, namely,

Goutam Kundu vs. State of West Bengal (1993) 3 SCC 418 and
Sharda vs. Dharmpal (2003) 4 SCC 493. 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 the court must carefully
examine as to what would be the consequence of ordering the blood
test. In 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 prime
facie case and there is sufficient material before the court. Obviously,
therefore, any order for DNA test can be given by the court only if a
strong prima facie case is made out for such a course“.

Therefore with the discussion in the rulings as noted supra, it is

to be understood that despite the consequences of a DNA test, the
Supreme Court has concluded, that it was permissible for a Court to
permit the holding of a DNA test, if it was eminently needed, after
balancing the interests of the parties.

Recently, the Apex Court in Nandlal Wasudeo Badwaik vs.

Lata Nandlal Badwaik and another11, was again encountered with
the issue of disputed paternity and role of DNA test. The Supreme
Court held as under:

“15. Here, in the present case, the wife had pleaded that the husband
had access to her and, in fact, the child was born in the said wedlock,
but the husband had specifically pleaded that after his wife left the
matrimonial home, she did not return and thereafter, he had no
access to her. The wife has admitted that she had left the matrimonial
home but again joined her husband. Unfortunately, none of the
courts below have given any finding with regard to this plea of
the husband that he had not any access to his wife at the time
when the child could have been begotten.

16. As stated earlier, the DNA test is an accurate test and on that
basis it is clear that the appellant is not the biological father of the girl
child. However, at the same time, the condition precedent for
invocation of Section 112 of the Evidence Act has been
established and no finding with regard to the plea of the husband
that he had no access to his wife at the time when the child could
have been begotten has been recorded. Admittedly, the child has
been born during the continuance of a valid marriage. Therefore,
the provisions of Section 112 of the Evidence Act conclusively prove
that Respondent 2 is the daughter of the appellant. At the same time,
the DNA test reports, based on scientific analysis, in no uncertain
terms suggest that the appellant is not the biological father. In such
circumstances, which would give way to the other is a complex
question posed before us.

11 (2014) 2 SCC 576

17. We may remember that Section 112 of the Evidence Act was
enacted at a time when the modern scientific advancement and DNA
test were not even in contemplation of the legislature. The result of
DNA test is said to be scientifically accurate. Although Section 112
raises a presumption of conclusive proof on satisfaction of the
conditions enumerated therein but the same is rebuttable. The
presumption may afford legitimate means of arriving at an affirmative
legal conclusion. While the truth or fact is known, in our opinion, there
is no need or room for any presumption. Where there is evidence to
the contrary, the presumption is rebuttable and must yield to proof.
The interest of justice is best served by ascertaining the truth and the
court should be furnished with the best available science and may not
be left to bank upon presumptions, unless science has no answer to
the facts in issue. In our opinion, when there is a conflict between a
conclusive proof envisaged under law and a proof based on scientific
advancement accepted by the world community to be correct, the
latter must prevail over the former.

18. We must understand the distinction between a legal fiction and the
presumption of a fact. Legal fiction assumes existence of a fact which
may not really exist. However, a presumption of a fact depends on
satisfaction of certain circumstances. Those circumstances logically
would lead to the fact sought to be presumed. Section 112 of the
Evidence Act does not create a legal fiction but provides for
presumption.

19. The husband's plea that he had no access to the wife when
the child was begotten stands proved by the DNA test report and
in the face of it, we cannot compel the appellant to bear the
fatherhood of a child, when the scientific reports prove to the
contrary. We are conscious that an innocent child may not be
bastardised as the marriage between her mother and father was
subsisting at the time of her birth, but in view of the DNA test reports
and what we have observed above, we cannot forestall the
consequence. It is denying the truth. “Truth must triumph” is the
hallmark of justice.”
Matrimonial dispute and DNA testing:

The Supreme Court in Dipanvita Roy v Ranobrota Roy12, was

dealing with the challenge to the order of High Court directing
respondent-wife to undergo DNA Test for proving the allegation of
infidelity in a petition under Section 13 of Hindu Marriage Act. After
referring the authorities, the Apex Court observed that proof based on
a DNA test would be sufficient to dislodge, a presumption under
Section 112 of the Indian Evidence Act. The Apex Court observed
that it is borne from the decisions rendered by this Court in Bhabani
Prasad Jena, and Nandlal Wasudeo Badwaik, that depending on
the facts and circumstances of the case, it would be permissible for a
Court to direct the holding of a DNA examination, to determine the
veracity of the allegation(s), which constitute one of the grounds, on
which the concerned party would either succeed or lose. There can be
no dispute, that if the direction to hold such a test can be avoided, it
should be so avoided. The reason, as already recorded in various
judgments by Supreme Court, is that the legitimacy of a child should
not be put to peril.

In the context of matrimonial dispute, the Supreme Court in

Dipanvita Roy case observed that “ We are therefore satisfied, that
the direction issued by the High Court, as has been extracted herein
above, was fully justified. DNA testing is the most legitimate and
scientifically perfect means, which the husband could use, to establish
his assertion of infidelity. This should simultaneously be taken as the
most authentic, rightful and correct means also with the wife, for her to
rebut the assertions made by the respondent-husband, and to
establish that she had not been unfaithful, adulterous or disloyal. If the
appellant-wife is right, she shall be proved to be so”.

The decision is Dipanvita Roy case state that for proving the
allegation of infidelity alleged in a matrimonial dispute, DNA test can

12 AIR 2015 SC 418

be permitted in the facts and circumstance of each individual cases
considering the precedents that caution the court from using their
discretion judiciously while ordering for DNA test. The reason for such
caution is an innocent child's legitimacy is put a stake for proving an
allegation in a lis between the parties. The interest and right of a child
protected under Section 112 can not be easily and as a matter of
course ought not be challenged by ordering for DNA test in
matrimonial litigation.

Understanding the Precedents under Section 112:

The decisions in Guntam Kundu13, Sharda14 and Babani

Prasad Jena15 dealing with the issue of DNA test in case of disputed
paternity held that DNA test can be ordered when paternity is
disputed. However, it was observed by Apex Court that a strong prima
facie case has to be made out by husband showing that he did not
have access to his wife when the child was supposed to be
conceived. The Courts noted the sensitivity attached to the order of
DNA test as such test would expose the child who is born to the
parties at marital dispute.

The view of Supreme Court in Kamti Devi and Sham Lal in

clear terms asserted that DNA test would not be of any help to the
husband when once child being born during valid marriage and parties
to it having access to each other is proved. The decisions state that
DNA test can not rebut the presumption that is raised under section
112 Indian Evidence Act,1872.

In Nandlal Wasudeo Badwaik, the Supreme Court observing

the fact that trial court failed to giving finding on husband plea of no-
access held that “the husband's plea that he had no access to the
wife when the child was begotten stands proved by the DNA test
13 Goutam Kundu vs. State of West Bengal (1993) 3 SCC 418
14 Sharda vs. Dharmpal (2003) 4 SCC 493
15Bhabani Prasad Jena vs. Convenor Secretary, Orissa State
Commission for Women and another (2010) 8 SCC 633
report and in the face of it, we cannot compel the appellant to
bear the fatherhood of a child, when the scientific reports prove
to the contrary”.

The discussion concerning the precedents under Section 112 of

Indian Evidence Act,1872 give an understanding that court can order
for DNA test in case of disputed paternity. However, courts must be
cautious in ordering for the DNA Test as delicate issue of child's
legitimacy is involved, as such only upon strong prima facie case
being made by the husband showing that he was not having access to
his wife when child was begotten, the courts can order for DNA test.

The decision in Kamti Devi and Sham Lal authoritatively held

that once child being born during valid marriage and parties to it
having access to each other is proved, the DNA test report would not
help the husband in proving the point that he was having “no access”
at the point of time when child was conceived. The recent decision in
Nandlal Wasudeo Badwaik need to be distinguished on the factual
matrix that was presented before the court. In said decision it was
observed that lower court did not give any finding on the plea of
husband of he not having access to his wife. In such factual context,
the Supreme Court held that DNA Test favouring husband proved that
he has “no access” to his wife at the time when the child could have
begotten.

It must be observed that as per Section 112 of Indian Evidence

Act,1872 when a child is born during subsistence of valid marriage, it
is conclusive proof of such child being legitimate child, unless the
parties to the marriage prove that they had “no-access” when the child
could have been begotten. Thus, burden on the party/wife to prove
legitimacy would be discharged once, it is proved that child is born
during subsistence of valid marriage and parties to such marriage has
access to each other when such child is begotten. The opposing and
disputing party/husband need strong prima facie evidence to show
that he had no access to his wife when child was begotten. The expert
opinion of DNA test would add as corroborative evidence but it can not
be treated as sole and substantive evidence. It is settled law that
expert evidence under Section 45 of Indian Evidence Act, 1872 act as
corroborative evidence and such evidence need to be substantiated
by other cogent and convincing evidence.

It need to be understood that disputing party/husband in order to

make court not to drawn presumption under Section 112, has to prove
that he was not having “access” to his wife when the child was
begotten. The DNA test would only show that child is not biologically
related to the disputing party/husband (in case such report favours
disputing party/husband). Such DNA test report does not in any case
prove that disputing party/husband did not have access to his wife
when the child was conceived. It can not be the case of disputing
party/husband that apart from him somebody else has “access” to his
wife. As such DNA test report can be a concrete evidence in the form
the expert opinion but such evidence need to be corroborated with
other strong prima facie evidence showing that husband did not have
“access” to his wife when child was conceived in order to escape of
rigour of Section 112 of Indian Evidence Act,1872.

Conclusion:
The Law Commission of India in its 185 report proposed
amendment to Section 112 as under :

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 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.”

The recommendations of the 185th Law Commission Report for

amending S.112 of Indian Evidence Act,1872 has till date not been
considered by the legislature. Therefore, the law as it exists under
Section 112 of Indian Evidence Act,1872 leans in favour of the
innocent child from being bastardized if his mother and father under
valid and subsistence marriage were living together during the time of
conception. As it stand today, Section 112 of Indian Evidence Act,
1872 does not give way for DNA test as sole and substantive
evidence for proving the issue of disputed paternity.

The conclusion would be apt if mention is made of the 69th

report of the Law Commission of India, where the decision between
Vasu v. Santha (1975) Kerala Law Times 53 was cited in the
discussion on amendment to Section 112 of Indian Evidence
Act,1872. In the said decision it was pointed out that the legislature
alone can change the rigour of the law, and not the Court. The Court
cannot base a conclusion on evidence different from that required, by,
law, or decide on a balance of probability which will be the result if
blood test evidence is accepted. The following observations were
made:

“ The standard of proof in this regard is similar to the standard of

proof of guilt in a criminal case. These rigours are justified by
consideration of public policy for there are variety of reasons
why a child's status is not to be trifled with. The stigma of
illegitimacy is very severe and we have not any of the protective
legislation as in England to protect illegitimate children. No
doubt, this may in some cases require a husband to maintain
children of whom he is probably not the father. But, the
legislature alone can change the rigour of the law and not the
court. The court cannot base a conclusion on evidence different
from that required by the law or decide on a balance of
probability which will be the result if blood test evidence is
accepted”