India for DNA test in child maintenance suits
Zahidul Islam Biswas
Since the discovery of DNA in 1984, DNA test has emerged as a powerful tool for determining human identity and relationship for various purposes. DNA (deoxyribonucleic acid), found in nucleus of a cell in human body, can be collected from the sample of saliva, hair, blood, semen, sweat etc. DNA test can reveal existence of relations among persons and determine the nature of their relationships. Before the advent of DNA test, test of human identity was largely completed by blood typing. Analysis of DNA has now replaced blood and it has been accepted as the most accurate method currently available for identification.
Britain started the use of DNA test in legal cases first in 1987. Later on, most of the developed countries began to use this modern technology based method in both civil and criminal justice system because of its effective role in identification. This method gains more and more importance with scientific development in latter years. Today DNA can be deduced from number of evidences in the crime scene, such as, a person's used hat, collar of shirt, pillow, blanket, bed sheet etc. By DNA test, it is now possible to obtain information on person's gender, age, ethnic background etc.
India also started to avail the benefit of DNA test in its criminal justice system long ago. Now Delhi High Court introduced the use of DNA test in civil justice system. By an order on 14 May 2008, Delhi High Court set legal precedent for the use of DNA test for determining paternity in case of child maintenance suit. The order came when the court faced with claims by a man that he didn't father a child for whom his estranged wife was seeking maintenance. The fact of the suit is as follows:
Ravindar and Sonam (name changed) tied knot in September 2000. A year later, Anup was born. Alleging Sonam of having illicit relations Ravindar walked out of the marriage only to be slapped with a case of harassment for dowry in 2007 and a case of maintenance a year later. Sonam demanded maintenance for Anup.
In the hearing of the suit in the lower court, Ravindar claimed that Sonam had illicit relations with her brother-in-law and this child was born out of that affair. Wondering why he should be held liable for maintenance when he wasn't the biological father, he also claimed that he didn't have physical relations with his wife ten months before Anup was born and therefore suspected her of committing adultery. Hence, he pressed for a DNA test for determining paternity of the child.
Ravinder's plea before the magistrate was dismissed after the lower court held that holding of a DNA test will not have any effect on the merits of the case as maintenance petition doesn't differentiate between a legitimate child and an illegitimate one. Then he moved to the High Court.
Delhi High Court quashed the lower court's decision and accepted Ravindar demand for DNA test. Justice Vipin Sanghi, while ordering for DNA test, observed that 'The parentage of the child can only be determined by a DNA test. The liability to pay maintenance under section 125 CrPC can be avoided by the petitioner with respect to this child only if it is established that he is not the biological son of the petitioner'.
Usually, law acknowledges a person as a biological father of a child if there is a birth certificate naming that person as the father of the child, or if there is any signed statutory declaration acknowledging paternity (a legal document which says that he is the father of the child), or if the child was born while two persons were married or living together, or if the child was born within some specified time (like 90 days) after the relation had broken down etc. With this judicial precedent, all these evidences became weaker because now onward the DNA test will exclude all other evidences and it will be treated as exclusive evidence in the court of law in case of paternity dispute.
While this is legal consequence of the High Court decision, here are some social impacts of the decision. A group of Indian citizenry is discontent with the decision because they think that now some people will demand the use of DNA test in other cases to prove adultery or paternity fraud creating harassment and social tension. Importantly, all of these cases will psychologically affect the child in question. In Indian society where woman's single parenthood is yet to recognize, where a child without father's identity is treated as illegal and huge social stigma is attached with it, when a mother cannot be a legal guardian for admission in educational institutions and for many purposes, the children with such disputes will psychologically suffer a lot. Not because of their own fault but because of their parents, their social position, respect and security will be affected.
The other group says there is no problem with introducing DNA test result as evidence in child maintenance cases. Rather not allowing DNA test in such dispute will create double standard, as already in criminal justice system in rape and child born out of rape cases DNA test is allowed to determine the criminal's identity and child's paternity. Hence, there is no logic in denying the benefit of the same scientific test when a woman is alleged to commit adultery and the evidence is claimed to be present there for the world to see in the form of a child. If in such dispute DNA test is not allowed, it will be a harmful endeavor to hide the social truth of adultery in Indian society. Also there is no logic in preventing a child from uniting with its biological father in the name of preventing psychological effect on the child.
The writer is an advocate of the Supreme Court of Bangladesh, is currently with the Centre for the Study of Law and Governance, JNU, New Delhi.