Establishment of paternity has become mandatory in certain cases involving paternity issues. Usually, the more common method adopted to establish paternity is blood group testing. Supreme Court laid down the following guidelines in Gautam Kundu Vs State of West Bengal (1993) 3 SCC 418, on the acceptance of blood tests to prove paternity
- Courts in India cannot order blood test as a matter of course.
- Applications praying for blood tests cannot be entertained it they made frivolously.
- Strong prima facie must be established in order to order the blood test to rebut the presumption under Section 112 of Evidence Act.
- Court must order blood test upon examining the consequences of ordering the blood test.
- One must not be compelled to give blood sample for analysis.
Also, Birth Certificates could also be helpful to prove the parentage.
DNA Paternity testing has proved very effective and successful in identifying the person because its structure varies from one individual to other, and it carries the genetic code, through we can able prove the structure, and body characteristics. DNA testing is used to identify the biological parents of a child with the help of their genetic code matching to that of child’s genetic code. The DNA testing guarantees 99.9% accurate results and that’s why it is now used in the legal disputes.
DNA testing got legally validated in India in the year 1989 to prove the parentage and legitimacy of the child. This testing is much required to clear the disputes related to property, inheritance, maintenance and other legal issues. However, In Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633, held that “DNA test 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.
Clear rulings not given by the Apex court, whether DNA testing can be used in the cases come under the purview of Section 112 of the Indian Evidence Act, 1872. Courts could not order DNA testing or blood testing to prove the legitimacy of child as a normal procedure. Court in Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449, held that “DNA testing gives accurate scientific results. It is not sufficient to escape from the conclusiveness of Section 112 of the Evidence Act (presumption) e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable.” In Gautam Kundu Vs State of West Bengal it was held that “ “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation. It is a rebuttable presumption of law under S.112 that a child born during the lawful wedlock is legitimate, and that access occurred between the parents”. As stated in Gautam Kundu Vs State of West Bengal, the question of proof of non-access for rebutting the conclusiveness must be answered.
By Anitha Gutti