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DETERMINING PATERNITY MATTER IN INDIAN LAW


Abstract

Paternity is an organic facet just as a social reality. It is biological in the sense that children would require both a natural father and a natural mother to be conceived. However, birth is just one of the numerous occasions in a child’s life and this is reflected in the legitimate development of the issue of paternity. The law not only interprets paternity dependent on the biological reality but additionally associates it with the social development of the obligations of both the mother and father. Scientific advancements and mechanical developments like the DNA test likewise address the subject of paternity yet through absolutely biological perspective. It hence represents a challenge to the legal framework of social status as the pre-prominent technique for setting up biological paternity. 
Law constructs the biological truth, through Section 112 of the Indian Evidence Act, 1872. Legitimacy alludes to the status of a child who is born to parents who are legitimately hitched to one another. The word Legitimacy finds its roots in the Latin expression “legitimate”  which implies ‘to make lawful’. The Indian law is disinclined to announce a child as ill-conceived. Under the Indian Evidence Act 1872, there is an assumption for Legitimacy of a child conceived during the duration of a substantial marriage between his mother and any man, or inside 280 days after its disintegration, the mother staying unmarried. The assumption must be invalidated in the event that it is appeared by capable proof that the parties to the marriage had no access to one another when the child could have been sired.
The rule, contained in the above Section, that duration of a legitimate marriage will avoid an induction being attracted such that the child born to a woman during the continuation of the substantial marriage was destined to someone else because of adulterous intercourse is only a rule of evidence. The assumption which Section 112, Evidence Act, 1872, ponders, is a conclusive presumption of law which can be uprooted uniquely by verification of the specific actuality referenced in the Section, in particular, non-access between the parties to the marriage when as per the conventional course of nature, the spouse could have been the father of the child 
Paternity of children has been broadly prosecuted in Indian courts in disputes concerning children. Advancements in science and the utilization of developments, for example, blood grouping and the DNA test has been progressively used in such paternity questions. The subject of questioned paternity may emerge in instances of Suppositious child, Nullity of marriage, Illegitimacy, Divorce, Guardianship Posthumous birth, and Inheritance of property and so on. 
The case of science to convey definitive proof of paternity has been very much acknowledged by Courts all around. However, the law as an institution has opposed the default usage of such tests in deciding such issues. The reasons arise from two specific points of view. Firstly, it would damage the right to privacy of the person if there should be an occurrence of an involuntary reference to such tests. Secondly, the interest of the child in question could be hurt beyond redemption. 
It is the emblem of law that “Odiosa et inkonesta non sunt in lege prae sumenda”  i.e. Nothing odious or dishonorable will be presumed by the law. So the law presumes against bad habits and corruption. 
Case Laws 
In Goutam Kundu v State of West Bengal and another , the Supreme Court held that the courts in India cannot order a paternity test as a part of normal discourse. There must be a very strong prima facie case that the spouse must set up non-access so as to scatter the assumption emerging under Section 112 of the Evidence Act. The DNA test can’t disprove the definitive assumption conceived under section 112 of the Indian Evidence Act. The Court in Shaik Fakruddin v Shaik Mohammed Hasan said that the parties can maintain a strategic distance from the meticulousness of such conclusive presumption only by demonstrating non-access to one another which is a negative proof.
Along these lines in Vasu v Santha , the Court reiterated its reluctance to figure out paternity through blood tests. Depending on its examination the Court drew up specific standards which would direct the Court’s methodology in these issues. These are as per the following:
  1. Courts in India cannot order blood tests as a matter of course.
  2. Applications made for such prayers in order to have roving inquiry; the prayer for blood tests cannot be entertained.
  3. There must be a strong prima facie case in that the husband must establish non-access
  4. in order to dispel the presumption arising out of Section 112 of the Evidence Act
  5. 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.
  6. No one can be compelled to give a sample of blood for analysis.
In Bhabani Prasad Jena case , the Supreme Court considered the issue of whether the Orissa State Commission for Women (OSCW) was within its utilitarian ambit to order a DNA test for the appealing party and the child. It found that according to the provisions of the Orissa State Commission for Women Act, 1993; even though it had the expressed capacity to take complaints, it lacked any powers to mediate such grumblings. Hence, it was discovered that the request coordinating the holding of the DNA test was outside the purview, and power of the OSCW.
Conclusion
One view is that when present-day science gives the methods for learning the paternity of a child, there ought not to be any faltering to utilize those methods at whatever point the event requires. The other view is that the court must be hesitant in the utilization of such logical advances and instruments which result in an attack of the right to privacy of an individual and may not exclusively be biased to the privileges of the parties however may devastatingly affect the child.
All in all these standards taken in total prevent the utilization from securing blood tests in the first instance and until there is a prima facie case set up for refuting the assumption under Section 112 of The Evidence Act, 1872. This delineates the Court’s approach in giving essential thought to the interests of the child in such paternity debates alongside individual assent. The Court should cautiously inspect with respect to what might be the result of requesting the blood test, regardless of whether it will have the impact of marking a child as a bastard and the mother as an unchaste lady. Besides, nobody can be constrained to give a sample of blood for examination. The consequence of an authentic DNA test is said to be deductively exact. Yet, even that isn’t sufficient to escape from the indisputability of Section 112 of The Evidence Act, 1872. In this manner regardless of tolerating the logical veracity of such tests, the Court does not acknowledge the legitimate adequacy of such tests in accommodating an only result in paternity debates.
References
  1. Junker, Kirk W. “Climate Change Action ‘Got ‘Tween the Lawful Sheets’.” Carbon & Climate Law Review, vol. 5, no. 3, 2011, pp. 329–341. JSTOR
  2. Chowdhury, Nupur. (2017). Constituting Paternity in India. 10.13140/RG.2.2.25231.48803. 
  3. “Presumption of Paternity in Law – Legal Advice Online in India: Lawyer: Civil, Family, Property, Criminal.” Legal Advice Online in India | Lawyer: Civil, Family, Property, Criminal.
  4. Khaganwal VP, Jakhar JK, Paliwal PK, Tyagi A, Mittal P. Legal aspects of legitimacy in Indian perspective: an overview Punjab Acad Forensic Med Toxicol 2012;12(2):111-4.
  5. Shyam Lal @ Kuldeep v. Sanjeev Kumar and ors. AIR 2009 SC 3115
  6. 1993 AIR 2295
  7. AIR 2006 AP 48 (7)
  8. 1975 KLT 533 
  9. Bhabani Prasad Jena v. Convener Secretary, Orissa State Commission for Women and Another (2010) 8 Supreme Court Cases 633

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