Point of Law: DNA test is intended to rebut `conclusive proof’ provided under Section 112 of Evidence Act.

JUDGMENT :

This Original Petition has been filed challenging order in Crl.M.Appl.No.307/2022 in M.C.No.35/2023 on the files of the Family Court, Paravoor.

2. Heard the learned counsel for the petitioner on admission. Notice to the other side stands dispensed with.

The averments in CMP.No.774/2019 is as under:

The petitioner in the above C.M.P, who is the petitioner herein, raised a contention before the Family Court that he married the 1st respondent herein on 14.07.2004 and the 1st respondent is a person suffering from mental disease and, therefore, he had no occasion to have sexual intercourse with the 1st respondent. According to the petitioner, the petitioner was abroad for years after the marriage and the petitioner brought the 1st respondent abroad twice. Thereafter the 1st respondent left the company of the petitioner due to mental problem. As such the paternity of the petitioner is doubtful. Therefore, the petitioner sought DNA test to find out the paternity of the 2nd respondent, who is the minor child.

3. The 1st respondent filed detailed objection mainly contending that the marriage between the petitioner and the 1st respondent was solemnised on 17.04.2004 before the Mahadevar Temple, Puthiyadom, Paravoor and in the said wedlock, the 2nd minor child was born on 21.02.2006. It was also contended that in between 12.02.2005 and 12.05.2005, the 1st respondent along with the petitioner resided in Oman and the 2nd respondent minor child was born during the said period. The petition was filed to deny payment of maintenance without denying the paternity and, therefore, the petition filed as an experimental measure is liable to be dismissed.

4. The learned Family Court Judge considered the rival contentions and dismissed the application as per Ext.P6 order, finding that the petitioner herein had no case that he did not have any access with the 1st respondent at the begotten time, in a case, where Section 112 of the Evidence Act would apply. It was also observed by the learned Family Court Judge that earlier also, the petitioner filed a similar application seeking the relief to conduct DNA test and thereafter the petitioner/1st respondent resumed joint residence and accordingly the said petition was withdrawn. It is also noted by the Family Court that in the objection filed in the main petition the only contention raised by the petitioner herein was that he had suspicion with respect to the paternity and he did not have a consistent case denying the paternity of the child. Therefore, it was found by the Family Court that DNA test to rebut the conclusive presumption available under Section 112 of the Evidence Act could be available only in compelling circumstances and the same is not a device to clear suspicion, regarding paternity.

5. The learned counsel for the petitioner reiterated the contention raised before the Family Court and pressed for the necessity of DNA test. But the learned counsel failed to substantiate an outright denied of paternity.

6. Thus the question to be considered is; whether DNA test can be pressed into, in order to clear a suspicion regarding the paternity of the child, when there is no specific denial of paternity?

7. In this connection, it is relevant to refer Section 112 of the Indian Evidence Act, 1972, which provides that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. In fact, DNA test is intended to rebut the `conclusive proof’ provided under Section 112 of the Evidence Act.

8. While taking the legal sanctity of DNA test, in a latest decision reported in [2023 KHC 6155 : 2023 (2) KLT 101 : 2023 (1) KLJ 876 : 2023 SCC OnLine SC 161], Aparna Ajinkya Firodia v. Ajinkya Arun