Supreme Court: Factors to be considered by the court while directing wife to undergo DNA test to determine paternity of a child

 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.

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Kerala HC: Court can not draw presumption of legitimacy of a child under Sec. 112 of Evidence Act unless the marriage of his parents is declared valid

It is fundamental and axiomatic that valid marriage must be proved before the presumption under Sec. 112 can be invoked. Proof of valid marriage is sine qua non for invocation of the presumption under Sec. 112. Whatever the period of their cohabitation, however loyal and committed the partners may be to each other and however convincing the evidence of their faithful cohabitation may be, the presumption under Sec. 112 cannot be invoked or drawn unless solemnization of valid marriage is proved. Proof of valid marriage is the bedrock on which the presumption under Sec. 112 is built.

32. Such a presumption cannot obviously have any role or play before the validity of the marriage is established. To establish the validity of such a marriage, the presumption under Sec. 112 cannot obviously be invoked. In a case like the instant one where the validity of the marriage is assailed on the ground that the wife was pregnant through another on the date of marriage, this presumption cannot have any play at all. It would be a classic instance of putting the cart before the horse, if this presumption were to be invoked for ascertaining the validity of the marriage itself. We have, in these circumstances, no hesitation to agree with the learned Counsel for the appellant that the presumption under Sec. 112 cannot be invoked in a case where the very validity of the marriage is in question. Only after the validity of the marriage is considered and decided, the presumption under Sec. 112 can be invoked. To decide whether the marriage is valid or not, the presumption under Sec. 112 cannot obviously be invoked.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal Nos. 75 of 2008 & 31 of 2010

Decided On: 13.04.2012

 Rajesh Francis  Vs.  Preethi Roslin

Hon'ble Judges/Coram:

 Mr. Justice R. Basant &Mr. Justice K. Surendra Mohan

Citation: MANU/KE/0523/2012,2012 SCCONLINE Ker 5356

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Whether dispute of paternity can be raised again and again?

In case the occasion to raise the plea has arisen for the first time in the
present suit, and the petitioner has raised it, it would have certainly needed
adequate attention of the Court.  That, however, is not the case.  Way back in
the year 1995, the respondents and their mother filed M.C.No.23 of 1995 in the
Court of Additional Junior Civil Judge, Addanki, under Section 125 of Cr.P.C.
The petitioner raised the same plea, as in the present suit, about his
relationship with the respondents.  The trial Court rejected that plea and
allowed M.C.No.23 of 1995, through order dated 27-03-1996.
The petitioner could have felt grievance about two aspects, viz., the quantum of
maintenance, or the very obligation to pay it.  Irrespective of the quantum of
maintenance ordered by the trial Court, if the petitioner was able to establish
that he is not under obligation to pay that at all, on the ground that the
respondents are not his children, he was supposed to challenge the findings
recorded in the M.C.

Section 125 of Cr.P.C. is very clear and succinct in its purport.  The
maintenance can be ordered by a Court against a person only in favour of his
wife, legitimate or illegitimate minor children, and parents.  While the
relationship with the wife comes into existence on account of marriage,  the
relationship with the children and parents is one, referable to sanguinity, or
through blood. The said provision does not recognize any other kind of
relationship for placing the person under obligation to pay maintenance.

A specific issue was framed in the M.C., and it was answered against the
petitioner.  The plea that the proceedings under Section 125 of Cr.P.C are
summary in nature; cannot be accepted. 
The reason is that the trial Court must record specific findings,
not only about the existence of relationship, but also the aspect of negligence.
Apart from that, the necessity of the persons, claiming maintenance, on the one
hand, and the financial status of the person, against whom it is claimed, on the
other hand; are required to be determined succinctly.  That, in turn, needs
recording of evidence.  When such is the state of affairs, the proceedings
cannot be said to be summary in nature.

The very fact that the petitioner was made to pay maintenance to the respondents
1 and 2 discloses that he was treated as their father, and by permitting the
order to become final, the petitioner had admitted that relationship.  He cannot
be permitted to re-open the same, when the suit for partition was filed.  The
trial Court has taken correct view of the matter.

Whatever may be the permissibility for a party to raise same questions in
different proceedings, the one, relating to parentage cannot be permitted to be
pleaded, repeatedly.  
ANDHRA PRADESH HIGH COURT

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY          

C.R.P.No.3334 of  2013 

14-11-2013 

Potu China Musalaiah..petitioner
Vs
Potu Yallamanda and another..Respondents   



THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY          
Citation: 2014(1)ALD558,2014(2)crimes 538 AP

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