Recently, in a ruling that revisits the delicate intersection of marital presumption, personal dignity, and evidentiary thresholds, the Allahabad High Court has held that a DNA test to determine paternity cannot be directed mechanically merely because a husband disputes parentage. The Court examined whether the statutory presumption of legitimacy under Section 112 of the Evidence Act, 1872, could be displaced in a domestic violence proceeding where the husband sought genetic testing of a child born during a subsisting marriage.
The case stemmed from a challenge to concurrent orders of the trial court and the appellate court rejecting the revisionist-husband’s request for a DNA test of the child born to the wife. The wife had initiated proceedings under Section 12 of the Protection of Women from Domestic Violence Act, in which the husband questioned the paternity of the minor girl. His application for DNA testing was dismissed by the Special Chief Judicial Magistrate, and the appellate court affirmed the rejection. He thereafter invoked the revisional jurisdiction of the High Court, asserting that the child was not born out of cohabitation and that the lower courts had erred in refusing a direction for genetic testing.
The revisionist argued that the wife lived with him only for a brief period after the marriage and thereafter stayed continuously at her parental home, visiting the matrimonial house only occasionally. He asserted that the wife was educated and employed, and allegedly unwilling to reside with him because he was an “illiterate villager.” Claiming that the wife last visited the matrimonial home in May 2011 and later gave birth to a female child in December 2012, he contended that there had been no opportunity for cohabitation during the period of conception. Accordingly, he submitted that the order declining DNA testing was “illegal, arbitrary and liable to be set aside.”
On the other hand, the wife and the State contended that both courts had rightly applied Section 112 of the Evidence Act, 1872, which treats the birth of a child during a valid marriage as “conclusive proof of legitimacy” unless the absence of access is clearly established. It was argued that the presumption of legitimacy remained intact in the present case and that the impugned orders were neither illegal nor contrary to law.
The Court observed that the statutory rule creates a “successive presumption” in favour of legitimacy and is a “legal recognition that the husband is the father of the child born.” The Bench noted that this presumption also guards against “unwarranted intrusion into the illegally produced status of illegitimacy, thereby ensuring a familiar relationship and protection of the child.” It explained that non-access under the provision must be established in a narrow and specific sense, observing that it denotes “not merely absence of access but even where cohabitation existed, non-access may arrive due to impotency or absence during relevant period.”
The Court held that “It is settled principles of law that an order for D.N.A. test cannot be given in routine manner and can be directed in specific circumstances where any person proves that there was no chance for cohabitation between the parties during the relevant period.”
The Bench also highlighted while referring to the case Ivan Rathinam v. Milan Joseph, that a compulsory DNA test implicates the right to privacy and dignity, and may expose individuals to stigma and intrusive scrutiny. The Court emphasised the Supreme Court’s caution that before permitting such an inquiry, courts must ensure that the test satisfies the constitutional requirements of legality, necessity, and proportionality, noting that unwarranted testing constitutes an infringement of personal liberty.
The Court found that the revisionist had merely asserted that his wife stayed only for a few days in the matrimonial home without establishing the required threshold of “no chance for cohabitation,” and that both lower courts had recorded specific findings in support of their rejection.
Finally, the Court dismissed the criminal revision, holding that there was no illegality in the concurrent orders refusing the request for a DNA test and that the statutory presumption of legitimacy remained unrebutted.
Case Title: Ramraj Patel v. State of U.P. and Another
Case No.: Criminal Revision No. 3271 of 2021
Coram: Hon’ble Justice Chawan Prakash
Advocate for Revisionist: Adv. Virendra Singh, Virendra Singh Yadav
Advocate for Respondent: G.A., Shailesh Kumar Tripathi
Read Judgment @Latestlaws.com
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