Friday, August 6, 2010

Don't do paternity test routinely: SC

Don't do paternity test routinely: SC

5 Aug 2010, 0420 hrs

NEW DELHI: In a significant judgement, the Supreme Court has said that paternity test to determine the identity of the child should not be done in a routine manner as it infringes on the right to privacy and may also render the child as bastard.

Such test should be done after taking into account various balancing acts and when it eminently required, said the apex court, setting aside the order of the Orissa High Court which had ordered for a DNA test to determine the paternity of a child in a matrimonial dispute.

“In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed.

DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects, including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test”, said a bench comprising Justice Aftab Alam and Justice RM Lodha.

The court said, “in a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires.

The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception”.

The court also expressed serious concern over the order of the Orissa State Commission for Women which had roped into matrimonial dispute to determine the rights of the parties and had passed certain directions.

“No power or authority has been given to the state commission to adjudicate or determine the rights of the parties”, said court
It said, the act of 1993 has not entrusted the state commission with the power to take up the role of a court or an adjudicatory tribunal and determine the rights of the parties. The state commission is not a tribunal discharging the functions of a judicial character or a court.

The court passed the judgement on the appeal filed by Bhabani Prasad Jena.

On May 15, 2007, the appellant and Suvashree Nayak got married. The certificate of marriage was issued by the marriage officer, Khurda, Bhubaneswar on June 30, 2007. However, in less than three months, on August 7, 2007, the appellant filed a petition under Section 25(iii) of the 1954 Act for a declaration that the marriage between him and Nayak was nullity as such marriage was consummated which is pending in the court.

However, on December 30, 2008, Nayak filed a complaint before Orissa State Commission for Women alleging that she was married to the appellant and due to torture meted out to her by the appellant and his family members and other issues, they have separated. She claimed that she was pregnant.

The commission ordered that maintenance was compulsory for the petitioner, as she has to have safe delivery and take care of the baby besides other directions.

The appellant then challenged the order of the commission in the high court. It had ordered for a DNA test of the appellant and the child. Against high court order, the appellant had came to the apex court. “The High Court instead of correcting that order went a step further and directed that DNA of the child as well as the appellant shall be conducted”, said Justice Lodha writing the judgement for the bench.

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