The issue involved in this case is whether a person disputing paternity of the child can seek for subjecting the mother and child to DNA test to determine paternity. This issue has been answered by the Apex Court in Teeku Dutta's case, (supra). In paras 10 and 11 it was held thus :
"10. In matters of this kind the Court must have regard to Section 112 of the Evidence Act. This Section is based on well known maxim pater is best quem nuptiae remonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed the law in general presuming against vice and immorality.
11. It is rebuttable presumption of law that a child born during lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities."
In the view of the ratio laid down by the Apex Court, it is to be held that in maintenance proceedings, the party disputing the paternity of the child has to prove his 'non access' with the mother of the child during the relevant time in order to dispel the presumption under Section 112of the Evidence Act and such presumption shall have to be displaced by leading strong preponderance of evidence and not by mere filing a petition for determining the paternity by medical tests i.e. DNA, the impugned order is liable to be set aside and it is accordingly set aside.
Andhra High Court
Smt. Didde Sundara Mani And Anr. vs Didde Venkata Subbarao And Anr. on 9 June, 2005
Equivalent citations: 2005 (2) ALD Cri 237, 2005 CriLJ 3618, I (2006) DMC 83
Bench: G Mohammed
1. This criminal petition is filed against the order dated 1-4-2002 passed In Crl. M.P. No. 1568 of 2002 in MC No. 11 of 1999 by the II Addl. Judicial First Class Magistrate, Kowur, allowing the petition filed by the respondent herein for sending the petitioners herein who are respondents in the said petition, to necessary tests to the Centre for DNA Finger Printing and Diagnostics, CCMB Campus, Hyderabad.
2. The facts leading to the present litigation between the parties may be noted briefly.
3. The marriage of the 1st petitioner and the 1st respondent was solemnized on .1.1-10-1978 according to their caste custom and thereafter both lived together happily for quite sometime. It is stated that thereafter the 1st respondent got used to all types of vices such as drinking, womanizing and neglected the 1st petitioner. It is also stated that the 1st respondent used to beat her quite often very cruelly without any reasonable cause and eventually deserted her. As the 1st respondent deserted her willfully, the 1st petitioner filed MC. No. 14 of 1985 on the file of II Addl. Judicial First Class Magistrate, Kowur, wherein an amount of Rs. 100/- was granted towards the monthly maintenance. Both the spouses stated to have reconciled when the 1st petitioner filed a petition in MP No. 91 of 1989 for enhancement of the said monthly maintenance amount and they both filed a memo to that effect before the Court and started living together. Thereafter, the 1st petitioner stated to have given birth to the 2nd petitioner in the year 1992 out of their wedlock and they could live happily together upto the year 1995.
4. The trouble started thereafter, when it is stated that the 1st respondent against addicting to vices and deserted both the 1st petitioner and her son the 2nd petitioner. It is stated that the several efforts made by the 1st petitioner to bring back her husband into family fold, could not work out. It is stated that the 1st petitioner came to know that her husband deserted her because of his illicit intimacy with another woman of Ankalagudem. As the petitioners were not in a position to maintain themselves and having no alternative, they again filed MC No. 11 of 1999 on the file of II Addl. Judicial First Class Magistrate, Kovvur, for granting monthly maintenance. It is stated that in the said proceedings a monthly maintenance of Rs. l.000/- each was granted to the petitioners 1 and 2 in the month of February, 1999. It is stated that after a lapse of three years, the 1st respondent filed the present petition MP No. 1568 of 2002 under Section 45 of the Indian Evidence Act, for sending the petitioners to necessary tests to the Centre for DNA, Finger Printing Diagnostics, CCMB Campus, Hyderabad, the reason assigned for seeking such a relief by the 1st respondent is that the 1st petitioner is quite arrogant and she addicted to bad vices such as drinking alcohol apart from leading an immoral life and that the 2nd petitioner is not born through him and he is not his son. By the impugned order, the said petition Crl. M.P. No. 1568 of 2002 was allowed by the Court below.
5. Learned Counsel for the petitioners, firstly contended that the trial Court grossly erred in allowing the petition as it was filed at a belated stage when the matter is posted for arguments. Learned Counsel also contends that the paternity of child born during the wedlock cannot be determined by subjecting to blood test as rebuttal evidence and such a relief ought not to have been allowed by the trial Court in view of Section 112 of the Evidence Act, in maintenance proceedings. In support of his contentions, learned Counsel relied on the decisions in Tushar Roy v. Sukla Roy, (1993 Cri LJ 1669), Banarsi Dass v. Teeku Dutta, .
6. Though learned Counsel for the 1st respondent is served none appeared. There is no representation on his behalf either.
7. The issue involved in this case is whether a person disputing paternity of the child can seek for subjecting the mother and child to DNA test to determine paternity. This issue has been answered by the Apex Court in Teeku Dutta's case, (supra). In paras 10 and 11 it was held thus :
"10. In matters of this kind the Court must have regard to Section 112 of the Evidence Act. This Section is based on well known maxim pater is best quem nuptiae remonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed the law in general presuming against vice and immorality.
11. It is rebuttable presumption of law that a child born during lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities."
8. In the view of the ratio laid down by the Apex Court, it is to be held that in maintenance proceedings, the party disputing the paternity of the child has to prove his 'non access' with the mother of the child during the relevant time in order to dispel the presumption under Section 112of the Evidence Act and such presumption shall have to be displaced by leading strong preponderance of evidence and not by mere filing a petition for determining the paternity by medical tests i.e. DNA, the impugned order is liable to be set aside and it is accordingly set aside.
9. In the result, the criminal petition is allowed.
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