LAW RESOURCE INDIA

Be wary of ordering DNA to settle paternity: Supreme Court

Posted in CHILD RIGHTS, CRIMINAL JUSTICE SYSTEM by NNLRJ INDIA on August 8, 2010

J VENKATESAN IN THE HINDU

The Supreme Court has asked courts to be extremely careful in ordering a DNA examination to determine paternity, as sometimes such scientific tests may bastardise an innocent child even though its mother and her spouse were living together at the time of conception.The court, while ascertaining the paternity of the child when there is a dispute, must be reluctant to use such scientific tools which would invade privacy. Such invasion might not only be prejudicial to the rights of the parties but might also have a devastating effect on the child, said a Bench of Justices Aftab Alam and R.M. Lodha.

Writing the judgment, Justice Lodha said: “When there is an apparent conflict between the right to privacy of a person not to submit himself to forcible medical examination and the 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.”

The Bench said: “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 12 of the Evidence Act; the pros and cons of such an order and the test of ‘eminent need’ whether it is not possible for the court to reach the truth without use of such test.”

Citing earlier decisions, the Bench said courts could not order a blood test as a matter of course, and such prayers could not be granted for a roving enquiry. There must be a strong prima facie case and the court must carefully examine the consequence of ordering the blood test.

High Court order set aside

In the instant case, Bhabani Prasad Jena was aggrieved by an order of the Orissa High Court, which directed him to undergo a DNA test. He said he had not fathered the child in question in the womb of his wife. But Suvasheree Nayak claimed that he was the father (when the complaint was filed). On her complaint, the Orissa State Commission for Women directed him to maintain her as she needed safe delivery and to take care of the baby. On his appeal against this order disputing the paternity, the High Court ordered the DNA test. The present appeal is directed against this order.Setting aside the order, the Supreme Court said that when a matrimonial dispute was pending in a competent court, the High Court was not justified in ordering the DNA test. The Bench asked the matrimonial court to consider all issues and determine the claims of the parties in accordance with law.

http://www.thehindu.com/news/national/article558197.ece

Bhabani Prasad Jena Vs Orissa State Commission

2 Responses

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  1. Venkatesh P. Dalwai said, on August 8, 2010 at 22:17

    Apex court has taken note of the recent trend that every one has started raising issue of paternity in casual manner due to 2003 SC judgement on the issue. Apex court was justified in indicating guidelines.But where DNA test is ordered but aggreived has no means to challange the order which could result in devastating lives of connected. The law needs to regulate strict procedure where DNA test is ordered and must also provide for confirmation of such order by District Court if the original order is of its sub-ordinate court. The High court if the original order is of District court. Such measure is must since Judges especially young judges appointed to Lower courts lack exposure to realities of life.

  2. dna paternity test said, on November 12, 2010 at 04:48

    Interesting point made here, I actually believe that woman should be able to decide whether they want to pass a dna test or no. It is important to understand both side of the coin, and it is certainly important to consider the future of the child in the first place. thanks for this insightful post.


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