‘A’s wife applies and gets maintenance fixed for herself and her newborn child. The husband denies paternity and applies to the court for a blood group test of the mother and the child and his own. Write a reasoned order.

Question: ‘A’s wife applies and gets maintenance fixed for herself and her newborn child. The husband denies paternity and applies to the court for a blood group test of the mother and the child and his own. Write a reasoned order.

Find the answer to the mains question only on Legal Bites. [‘A’s wife applies and gets maintenance fixed for herself and her newborn child. The husband denies paternity and applies to the court for a blood group test of the mother and the child and his own. Write a reasoned order.]

Answer

Section 112 requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or nonexistence of opportunities for sexual contact; it does not mean actual cohabitation. It is a rebuttable presumption of law under section 112 that a child born during the lawful wedlock is legitimate, and the access occurred between the parents.

This presumption can only be displaced by a strong preponderance of the evidence, and not by a mere balance of probabilities. Thus following is the position as to the permissibility of blood test to prove paternity as laid down in the leading case of Goutam Kundu v. State of WB, AIR 1993 SC 2295:

1. The Courts in India cannot order blood tests as a matter of course.
2. Wherever applications are made for such prayers in order to have a 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.
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 a sample of blood for analysis

In the case of Babu Remyalayam Veettil v. Vidya, 2015 Cr LJ 1049, where the alleged father denied paternity of the child depriving her of the maintenance, it was held that the presumption under section 112 of the Evidence Act, 1872 does not bar the DNA test to prove the fatherhood of a child.

In the recent case of CKP v. MP, 2019 SCC OnLine Del 8077 the court on an application seeking DNA test of the child observed that: “In our view has very strong repercussion on the child and such an order for conducting a DNA test should be passed in very rare cases where very strong reasons are set out and in extreme circumstances when the matter cannot be resolved by leading evidence in the matter.”

The facts of the present case at hand relate to the Goutam Kundu case in which the petitioner disputed the paternity of the child as a defence to the wife and child’s maintenance petition under section 125 CrPC and had prayed for the blood group test of the child to prove this fact. One of the circumstances which had weighed with the court was the lack of consent to the blood test by the respondents. The Supreme Court held that there was no illegality in refusing the blood test for the reason that no consent has been given by any of the respondents. In this regard, the Supreme Court observed as follows:-

“The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference. Such an adverse inference that has only very little relevance here will not advance the appellant’s case to any extent. He has to prove that he had no opportunity to have any sexual intercourse with the respondent at a time when these children could have been begotten. That is the only proof that is permitted under Section 112 to dislodge the conclusive presumption enjoined by the Section”.

Therefore, it is indeed settled that the blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by Courts as circumstantial evidence. But no person can be compelled to give a sample of blood for a blood grouping test against his will and no adverse inference can be drawn against him for this refusal. It is only if, despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out of Section 114 of the Indian Evidence Act.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X