Can DNA testing decide paternity of a child? I want to get paternity check of my child through the court because I think that my wife had a sexual relationship with a man before the marriage. Her paramour is also working in Bangalore, and he used to contact her via email, chat and WhatsApp. I have sufficient evidence to prove that they are in the physical and sexual relationship.
I doubt that my daughter is the child of her paramour. Therefore I want to file a criminal case against him as well as a divorce case against my wife. What is the law towards DNA test?
Section 112 of the Indian evidence act provides presumption about the paternity of child upon fulfilment of certain conditions. The conditions mentioned in section 112 are necessary for the determination of paternity of a child. These conditions exclude the chance to perform a DNA test for the purpose of determine of paternity.
The issue is relating to the paternity of the child which strikes at the root and creates doubt about his legitimacy. Hence, the law always presumes the legitimacy of a child unless and until disproved by cogent evidence.
You have admitted that she is your legally wedded wife so prima facie the court shall presume that you are the father of the child. Now the “burden of proof” is shifted upon you to prove by sufficient evidence that he is not your child.
When a child is born within 280 days from the date of your marriage, and you had sexual intercourse with his mother, then the conditions mentioned in section 112 become fulfilled, and the court shall presume that he is your child.
Generally, the court does not permit to conduct a DNA test in case child is born during the subsistence of valid marriage. Law does not direct to perform a DNA test to prove paternity unless there is substantial doubt of legitimacy. In Goutam Kundu v. the State of W.B., (1993) 3 SCC 418; the Supreme Court held that:
The DNA test is a useful test to determine the question of disputed paternity. The court can rely upon finding of such test as circumstantial evidence which ultimately excludes a particular individual as a father of the child. Section 112 of the Evidence Act does not create a legal fiction but provides a strong presumption to prove paternity of the child.
You can demand to perform DNA test if you have cogent evidence to show that you had no access to the wife or had no sexual relationship when the child begot or wife has an extramarital affair or living in adultery. Thereafter, the court can direct to conduct a DNA test.
In Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454: Section 112; reproduces the rule of English law that it is undesirable to enquire into the paternity of a child when the mother is a married woman and husband had access to her.
In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576 the supreme court opined that Section 112 of the Evidence Act enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The presumption may afford legitimate means of arriving at an affirmative legal conclusion.
You can approach the court for a DNA test, but you have to prove that there is definite proof which creates doubt about the paternity or legitimacy of the child. You can file a criminal case against that man for the offence of adultery as well as you can present a divorce case on the ground of adultery.