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Judges : K.A.MOHAMED SHAFI
Sajeera - Appellant
Versus
P.K.Salim - Respondent
Case No : C.R.M.C. No. 583 of 1999 (C)
Decided On : 10/28/1999
Advocates Appeared :
For the Petitioner: T. M. Abdul Latheef, Advocate. For the Respondent: Sunny Mathew, Advocate.
DNA Test - Maintenance - Evidence Act, Section 112 - Summary of Acts and Sections: The court discussed the presumption of legitimacy of a child born during a valid marriage under Section 112 of the Evidence Act. It emphasized the burden of proof to establish non-access and the admissibility of DNA testing to determine paternity. The court also highlighted the guidelines laid down by the Supreme Court in Goutam Kundu v. State of West Bengal, AIR 1993 SC 2295 regarding the permissibility of DNA testing and the consequences of ordering such a test.
Fact of the Case:
The petitioner, a minor child, sought maintenance from the respondent, claiming to be her father. The respondent denied paternity, and the lower court dismissed the petition based on the presumption of legitimacy under Section 112 of the Evidence Act.
Finding of the Court:
The court found the lower court's dismissal of the petition based on the presumption of legitimacy to be illegal and unsustainable. It allowed the petition and directed the lower court to conduct a DNA test at the expense of the petitioner.
Issues: The main issue was the admissibility of DNA testing to determine paternity and the lower court's reliance on the presumption of legitimacy under Section 112 of the Evidence Act.
Ratio Decidendi: The court emphasized the burden of proof to establish non-access and the admissibility of DNA testing to determine paternity. It also highlighted the guidelines laid down by the Supreme Court in Goutam Kundu v. State of West Bengal, AIR 1993 SC 2295 regarding the permissibility of DNA testing and the consequences of ordering such a test.
Final Decision: The court allowed the petition, set aside the lower court's order, and directed the lower court to conduct a DNA test at the expense of the petitioner.
Certainly. Based on the provided legal document, the key points are as follows:
The primary legal issue concerns the admissibility of DNA testing to establish paternity in cases involving the presumption of legitimacy under Section 112 of the Evidence Act (!) (!) (!) (!) (!) (!) (!) .
The court emphasized that the burden of proof to establish non-access during the relevant period lies with the party challenging the presumption of legitimacy (!) (!) (!) (!) (!) (!) .
It is recognized that DNA testing, particularly advanced DNA fingerprinting, is a valuable method to exclude potential fathers and support paternity claims, although it cannot definitively establish paternity without consent (!) (!) .
The court outlined specific guidelines for ordering DNA tests, including that courts cannot order such tests as a matter of course and that there must be a strong prima facie case demonstrating non-access to dispel the presumption of legitimacy (!) (!) (!) .
The court highlighted that the impact of ordering a DNA test should be carefully considered, especially regarding potential social stigma or branding of the child and mother (!) .
In this particular case, the mother asserted that she had no access to her husband at the time of conception because he was abroad, and she had sexual relations with the respondent, who is her brother-in-law. The respondent did not deny willingness to undergo DNA testing but requested that expenses be borne by the petitioner (!) (!) .
The lower court’s order dismissing the petition for DNA testing was found to be illegal and unsustainable, as it failed to consider the circumstances and the petitioner’s willingness to bear the test expenses (!) .
The court directed the lower court to conduct the DNA test at the petitioner’s expense, emphasizing that such testing is a corroborative piece of evidence supporting the mother’s claim of no access to her husband during the relevant period (!) (!) .
Overall, the court reaffirmed that DNA testing, when appropriately ordered following the established guidelines, is a permissible and valuable tool in paternity disputes, and the refusal or rejection of such tests without proper grounds is unjustified (!) (!) .
Please let me know if you need further elaboration or assistance.
This M.C. is filed by the petitioner in C.M.P. 1410/98 in M.C. No. 168/98 on the file of the Family Court, Kozhikode to quash the order dated 4-1-99 in C.M.P. 1410/98 passed by the Court.
2. The M.C. is filed by a minor child Sajeera aged about 2 1/2 years, represented by her mother claiming maintenance from the respondent alleging to be her father. It is alleged that the mother of the minor child was married to one Majeed, the brother of the respondent and thereafter she was residing in her husband's house. During the relevant period her husband Majeed was away in Gulf country and the respondent was having sexual intercourse with her while she was residing in her husband's house. Accordingly she was impregnated by the respondent and she gave birth to the minor child on 3-11-95 from her husband's house. Since the respondent refused to maintain the minor child and refused to acknowledge the paternity of the child, she filed M.C. for maintenance against the respondent. At the stage of trial the petitioner filed the above C.M.P. to conduct DNA test of the minor petitioner and the respondent to prove paternity of the child. The respondent resisted the petition by filing a detailed counter. He contended that he had absolutely no sexual intercourse with the mother of the petitioner and the petitioner is not his child. He has also contended that he is married and living happily with wife and a child aged about 2 1/2 years. He also contended that there is absolutely no need to conduct the DNA test. He has further contended that if the petitioner is very particular to conduct the DNA test, he has no objection in conducting the test at the expense of the petitioner.
3. The lower Court by the impugned order dismissed the petition. Hence the petitioner has filed this M.C. before this Court to quash the order in the C.M.P. passed by the lower Court.
4. In this case the very allegation of the mother of the minor child is that while her husband Majeed was away in Gulf country, she had sexual intercourse with the respondent whereby she became pregnant and gave birth to the minor child. The case of the respondent is complete denial of any sexual relationship with the mother of the minor and the paternity of the minor child.
5. The counsel for the respondent has read over to me in Court the entire averments made by the respondent in the counter filed by him in C.M.P. 1410/98 before the lower Court. In that counter though he has denied any sexual relationship with the mother and the paternity of the minor child, he has nowhere stated that Majeed, his brother and husband of the mother of the minor child is the father of the child nor he has imputed paternity of the child on any other person. But it appears that the lower Court on the basis of the assumption that being a legal point, the presumption with regard to the legitimacy of the child born during the continuance of a valid marriage available under section 112 of the Evidence Act can be raised at any stage accepted the contention of the respondent, drew the presumption of legitimacy of the child under Section 112 of the Evidence Act and dismissed the petition finding that the mother of the child has failed to prove that she had no access at the time when the child would have been begotten with her husband.
6. In order to arrive at his conclusion the learned Family Court Judge has relied upon the decisions of this Court in Janamma v. Kuttappa Panicker, 1959 Ker LT 71 : (1959 Cri LJ 1328), Vasu v. Santha 1975 Ker LT 533 and of the Supreme Court in Goutam Kundu v. State of West Bengal, AIR 1993 SC 2295 : (1993 Cri LJ 3233).
7. The counsel for the petitioner submitted that all those decisions relied upon by the lower Court have arisen in cases where the father of the child denied paternity of the child born during the subsistence of valid marriage with the mother of the child and failed to prove that there was no access with the mother of the child at about the time the child would h
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