indrajit (clerk) 01 July 2011

DNA test in maintenance case

I have faced with a question in a maintenance case u/s 125, Cr.p.c wherein the wife prayed for maintenance of wife and child. But the husband/O.P denied paternity of the child, on the ground that previously a divorce by mutual consent application was filed wherein it was stated that the wife is living separately. Now if the total period of living separately by wife from the husband is counted it appears this period is more than 2 years. Now the husband states that when he is residing separately for the last 2 years or more, how could the child born. As such he denied the paternity of the child, which is girl child. The wife in her evidence stated that falsely the fact of her living separately with husband is made out, as she is an illiterate person. Now , the husband has prayed for dna test of the child before the court in maintenance case. Is there any scope of such test in a maintenance case u/s 125, cr.p.c. Anybody has any idea ?

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Devakrishnan (Consultant) 28 July 2011

Attaching views of SCC on DNA TEST.

There is no conflict in the two decisions of this Court, namely, Goutam Kundu1 and Sharda2 . In Goutam
Kundu1 , it has been laid down that courts in India cannot order blood test as a matter of course and such
prayers cannot be granted to have roving inquiry; there must be strong prima facie case and court must
carefully examine as to what would be the consequence of ordering the blood test. In the case of Sharda2
while concluding that a matrimonial court has power to order a person to undergo a medical test, it was
reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court.