In Indian matrimonial proceedings, when deciding an application for directing a wife to undergo a DNA or blood test to determine the issue of paternity, the court will consider various factors in accordance with the provisions of the Indian Evidence Act and other relevant legal principles. Here are some of the factors typically considered by the court:
1) Prima Facie Case: The party seeking the DNA or blood test must establish a prima facie case, meaning they must provide some initial evidence or circumstances that raise a reasonable doubt about the paternity of the child.
2) Welfare of the Child: The court's primary concern is the welfare and best interests of the child. It will consider the child's age, emotional well-being, and any potential harm that may result from the test or its consequences.
3) Voluntary Consent: Ideally, the parties involved, including the wife, should consent voluntarily to the paternity test. If the wife is unwilling to undergo the test, the court may weigh her right to bodily integrity against the interests of determining paternity.
4) Relevance of Paternity: The court will assess the relevance of determining paternity in the specific case. If paternity is a central issue that affects the rights and obligations of the parties, the court may be more inclined to order the test.
5) Presumption of Legitimacy: Under Section 112 of the Indian Evidence Act, there is a strong legal presumption of legitimacy for a child born during a lawful marriage. This presumption is rebuttable but requires strong evidence to overcome it.
6) Consequences of Non-Paternity: The court may consider the potential consequences of a finding of non-paternity, such as child custody and financial support obligations. If these consequences are significant, the court may be more inclined to order the test.
7) Dignity and Privacy: The court will respect the right to privacy and human dignity of all parties involved, especially the wife. Any order for a paternity test should respect these rights.
8) Previous Knowledge or Conduct: The court may consider whether the husband had prior knowledge of or acquiesced to the child's paternity. If the husband previously accepted the child as his own or engaged in conduct consistent with paternity, this may weigh against ordering a test.
9) Procedural Fairness: The court will ensure that the procedural requirements for ordering a paternity test are met.
It's important to remember that the specific factors considered may vary depending on the circumstances of the case and the discretion of the presiding judge. The court's decision should be based on a careful assessment of all relevant factors and the principles of justice and fairness as outlined in the Indian Evidence Act and other applicable laws.
Leading Supreme Court Judgment on this point is:
https://www.lawweb.in/2023/03/supreme-court-childrens-right-not-to.html
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 1308 of 2023
Aparna Firodia Vs. Ajinkya Firodia
Hon'ble Judges/Coram:
V. Ramasubramanian and B.V. Nagarathna, JJ.
Authored By : B.V. Nagarathna, V. Ramasubramanian
B.V. Nagarathna, J.
Decided On: 20.02.2023.
Citation: MANU/SC/0148/2023.
26. From the above discussion it emerges:
(1) that courts in India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayers in order to have 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 of the Evidence Act.
(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 sample of blood for analysis.
ii. In Bhabani Prasad Jena, this Court emphasised that a direction to use DNA profiling technology to determine the paternity of a child, is an extremely delicate and sensitive aspect. Therefore, such tests must be directed to be conducted only when the same are eminently needed. That DNA profiling 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. It was further declared that a Court may direct that a DNA test be conducted, to conclusively determine paternity, only when there is a strong prima-facie case in favour of the person seeking such a direction.
12. Having regard to the aforesaid discussion, the following principles could be culled out as to the circumstances under which a DNA test of a minor child may be directed to be conducted:
i. That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions.
ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption Under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption Under Section 112 of the Evidence Act, a DNA test may not be directed.
iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding.
iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct a DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test.
v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc.
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