Cannot Deny Paternity Of Children While Refusing To Undergo DNA Test: Allahabad HC

While rising up to the occasion and setting the right trend, the Allahabad High Court in a most learned, laudable, landmark and latest judgment titled S vs State of UP & Anr in Application under Section 482 in Case No. 28298 of 2021 and cited in Neutral Citation No. – 2024:AHC:100046 that was reserved on 21.5.2024 and then finally delivered on 30.5.2024 has minced just no words to observe in no uncertain terms that a man cannot deny paternity of his children and at the same time refuse to undergo a DNA test ordering him to either provide maintenance or to undergo the test. It also must be pointed out here that the Allahabad High Court after perusing the matter before it dismissed the father’s application challenging a family court order for a DNA test to establish the paternity of the two children born to his wife. It must be noted that the Court discussed the broader implications of directing a DNA test and stated that the best interests of the children should be of paramount consideration in such matters.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Prashant Kumar of Allahabad High Court sets the ball in motion by first and foremost putting forth in para 1 that, “Heard Shri Arvind Kumar, appearing for the applicant, Shri Shashidhar Pandey, learned A.G.A. for the State as well as Sri Rajesh Rai, learned counsel for the opposite party no.2 and perused the records.”

As we see, the Bench then specifies in para 2 that, “The instant application under Section 482 of Cr.P.C. has been filed by the applicant praying for quashing of the order dated 03.11.2021 passed by Additional Civil Judge/Family Court, District Mathura, in case no. 901 of 2019 (Smt. Mamata Vs. Sachin) under Section 125 Cr.P.C., Police Station Vrindavan, District Mathura.”

To put things in perspective, the Bench then envisages in para 3 that, “Learned counsel for the applicant submits that there is matrimonial dispute between the parties. It is alleged that earlier the opposite party no.2 was married to one Sunil Kumar. After the disappearance of Sunil Kumar for many years, the opposite party no.2 re-married the present applicant and out of their wedlock two children were born. Thereafter there was some matrimonial discord and hence the opposite party no.2 had filed application under Section 125 Cr.P.C. for maintenance. In the pending proceedings under Section 125 Cr.P.C., applicant had filed an application stating therein that the children are not of his and hence there was no question of paying any maintenance. On the request of opposite party no.2, to ascertain the parentage sought for a DNA test, the trial Court vide order dated 03.11.2021 ordered for DNA test.”

As it turned out, the Bench then enunciates in para 4 that, “By means of the instant application, the applicant has challenged the impugned order dated 03.11.2021, by which, the court had ordered for the DNA Test of the applicant.”

On the one hand, the Bench states in para 5 that, “Sri Arvind Kumar, counsel for the applicant submits that the opposite party no.2 is not his legally wedded wife so there is no question of paying any maintenance under Section 125 Cr.P.C. He further submits that the opposite party no.2 had earlier initiated the proceedings under Section 498A IPC against the applicant no.1 which was dismissed as they are not the legally married. Thereafter the opposite party no.2 had filed a case under Sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005, which was also rejected on the same ground. He further submits that in various documents the opposite party no.2 has been stating the name of her husband as Sunil Kumar. He further submits that no court can force the applicant to undergo a DNA test, without his consent. To buttress his argument, he placed reliance upon the judgment of the Apex Court in the case of Goutam Kundu Vs. State of West Bengal reported in 1993 SCC (3) 418, in which it has been held that the Court cannot order for blood test. He further placed reliance upon the judgment of Apex Court in the case of Ashok Kumar Vs. Raj Gupta and others reported in 2021 0 Supreme (SC) 534. Hence the order issued to undergo a DNA test is completely contrary to the prevailing law.”

On the other hand, the Bench mentions in para 6 that, “Sri Rajesh Rai, learned counsel appearing for the opposite party no.2 submits that the marriage of opposite party no.2 and the applicant was solemnized in the month of May, 2007. Out of the wedlock two children were born, in the birth certificates of the children, the name of the applicant has been recorded as father of the children. In fact the entire expenses of the delivery of the children was borne by the applicant. Even in the school the name of the father of the children is recorded as Sachin Agarwal (present applicant). He further submits that thereafter the name of the father of the children was changed in connivance of the applicant and the headmistress of the school, for which, the opposite party no.2 has lodged an FIR against the applicant and others. Against the said FIR,. the applicant had approached this Court for staying his arrest by filing criminal writ petition, which was dismissed. He further submits that the applicant is the biological father of the children of the opposite party no.2, and just to avoid paying any maintenance the applicant has taken a stand that he is not the father of the children of opposite party no.2. On his denial, to find out the truth the trial Court had ordered for a DNA test, which the applicant is opposing. The applicant cannot oppose to undergo the DNA test on the ground that no DNA test can be undertaken without his consent. To buttress his argument, he placed reliance upon the judgment of the Delhi High Court rendered in the case of Rohit Shekhar Vs. Narayan Dutt Tiwari and another, in FAO (OS) No. 547 of 2011.”

It cannot be glossed over that the Bench underscores in para 11 that, “A DNA test can serve as a decisive tool in resolving paternity disputes, which directly impacts the question of maintenance for the children involved. The primary aim of such testing is to arrive at the truth regarding paternity, which is essential for the just adjudication of maintenance claims, this Court finds that the paramount consideration in such cases is maintenance and the welfare of the children.”

While citing the relevant case law, the Bench underscores in para 12 that, “In Sharda v. Dharampal, (2003) 4 SCC 493, para 80, the hon’ble apex court held that the court must balance the interests of the parties and ensure that the children’s welfare is not compromised. The DNA test, although invasive, is necessary to conclusively determine paternity, which directly impacts the children’s right to maintenance.”

It would be worthwhile to mention that the Bench acknowledges in para 14 that, “Furthermore, the presumption of legitimacy under Section 112 of the Indian Evidence Act places the burden of disproving paternity on the person alleging illegitimacy. However, the use of DNA testing can provide a scientific basis for resolving such disputes definitively. In Banarsi Dass v. Teeku Datta (2005) 4 SCC 449, the Hon’ble Supreme Court acknowledged that while the presumption of legitimacy is strong, it can be rebutted by clear and convincing evidence. A DNA test, being a reliable and conclusive method, can either confirm or negate the presumption, thereby ensuring that the maintenance obligations are accurately determined.”

Frankly speaking, the Bench points out in para 15 that, “For the pursuit of justice, the court must employ all available means to uncover the truth and safeguard the rights of all individuals. The fundamental duty of the judiciary is to ensure that justice prevails by utilizing the most accurate and reliable methods, thus upholding the principles of fairness and equity for everyone involved. In the case of Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik & Anr (2014) 2 SCC 576, the Hon’ble Supreme Court in para 17, highlighted the reliability and scientific accuracy of DNA tests. The Court emphasized that while Section 112 of the Evidence Act creates a presumption of conclusive proof under certain conditions, this presumption is rebuttable. The Supreme Court asserted that in the interest of justice, the truth must be ascertained using the best available science, stating :- “In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.””

It is worth noting that the Bench notes in para 17 that, “In light of the Hon’ble Supreme Court’s decision in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia 2023 LiveLaw (SC) 122, this court recognizes the significance and sensitivity surrounding the order for a DNA test. It is imperative to acknowledge that while a DNA test is a powerful tool in ascertaining biological relationships, its deployment must be carefully weighed against potential misuse, the resultant social stigma, and the psychological impact on the children. The court must be cautious to avoid directing such tests in a routine or casual manner, and instead should assess the necessity based on the specific facts and circumstances of each case.”

Do note, the Bench notes in para 18 that, “The Supreme Court in the matter of Selvi Vs. State of Karnataka, 2010 (7) SCC 263 has categorically held that the civil court can direct for conducting medical examination to ascertain mental state of a party of a divorce proceeding.”

It is worth paying attention that the Bench points out in para 19 that, “Furthermore, the applicant’s refusal to undergo the DNA test, a procedure deemed essential for determining paternity and safeguarding the child’s welfare, could warrant an adverse inference under Section 114, Illustration (h) of the Indian Evidence Act. This provision allows the court to infer that evidence which could be and is not produced would, if produced, be unfavorable to the person withholding it. In Rohit Shekhar v. Narayan Dutt Tiwari 2011 SCC OnLine Delhi 4076, the Delhi High Court affirmed this principle, stating that refusal to undergo a DNA test in a paternity dispute can lead to an adverse inference against the refusing party. Such an inference, while not conclusive, strengthens the court’s ability to arrive at a just decision based on the available evidence and the best interests of the children.”

Be it noted, the Bench notes in para 20 that, “The psychological and social implications of unresolved paternity disputes cannot be ignored. A definitive determination of paternity through a DNA test can provide closure and stability for all parties involved, particularly the children. Ensuring that the children receive rightful maintenance that not only fulfills their financial needs but also affirms their social and legal status.”

Most remarkably, the Bench propounds in para 21 that, “In the present case, it is essential to consider the broader implications of directing a DNA test. The court is mindful of the potential trauma and stigma that might affect the children, should the paternity dispute be subjected to public scrutiny. The principle that the best interests of the children should be of the paramount consideration in all matters concerning them, as enshrined in Article 3 of the Convention on the Rights of the Children. The right to maintenance is not merely a legal provision but is deeply rooted in fundamental human rights. The Universal Declaration of Human Rights recognizes the right to an adequate standard of living, which includes food, clothing, housing, and medical care. In the context of children, maintenance is indispensable for their survival, growth, and development. Denying maintenance due to unresolved paternity issues would be a violation of their basic human rights.”

Most significantly and so also most forthrightly, the Bench mandates in para 22 what constitutes the cornerstone of this notable judgment postulating that, “In this case though the applicant is refusing the maintenance and the paternity of the children, however, when the court ordered for the DNA test, the applicant has assailed that order in this application. The applicant cannot be allowed to blow hot and cold at the same time. He cannot deny the paternity of the children and at the same time he refuses to undergo the DNA test. If he is doubting the paternity the only way to prove his case is by the DNA testing. Moreover, the applicant cannot equate the DNA test with the other tests like Narco test which needs a prior consent. Explanation 53 of Cr.P.C. now makes it abundantly clear “examination” would include DNA parentage.”

As a corollary, the Bench then directs in para 23 of this robust judgment that, “Accordingly, this Court hereby order the applicant to either fulfil his obligation of providing maintenance or undergo a DNA test, thereby dispelling any adverse inference drawn pursuant to Section 114, Illustration (h) of the Indian Evidence Act, 1872.”

Finally, the Bench then concludes by holding in para 24 that, “With the above observations/directions, the application under Section 482 Cr.P.C. is disposed of.”

To sum up, the Allahabad High Court has thus made it indubitably clear that a man cannot deny the paternity of children while refusing to undergo DNA test. So it is sine qua non that if a man denies the paternity of children then he must be definitely prepared to undergo DNA test and if he refuses, the Court will be free to draw an inference against him and treat the child as his own child. The Court also made it crystal clear that in such cases the best interests of the children should be placed in the highest pedestal and should be of paramount consideration in such matters. No denying it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.