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paternity in question -125 crpc


a mother files petition u/s 125 asking maintenance for minor child . But the respondent has taken plea questioning paternity of child . what the mother can do ?

 
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Advocate

Mother can show that child was born to the couple during continuence of marriage which shall conclusivly prove the parentage of the child.

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Advocate

We don't know the detailed facts of your case but it is the burden of the respondent. 

In general the question of paternity of the child arises in the maintenance case. The husband takes this plea to linger on the case and also as a safeguard against maintenance.

You may satisfy the court by showing the relevant documents as photo of child with father, family group photo along with the child and father, rashan card or any other relevant document showing that the father of the child was enjoying with the child.

If the child has taken birth after the seperation of husband and wife, you may move an application for DNA test.


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ADVOCATES & LEGAL ADVISORS

I agree with the advise of Sanjay sir,


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Advocate

I thnk DNA test would be the concusive proof for paternity.

 

valentine


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Advocate

I dont think courts allow for DNA test for the purpose of detecting the paternity of the child, accordign to Evidence Act.


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Advocate

DNA test would be the concusive proof for paternity.

 
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Advocate.

CASE NO.:

Appeal (civil) 2918 of 2005

PETITIONER:

Shri Banarsi Dass

RESPONDENT:

Mrs. Teeku Dutta and Anr

DATE OF JUDGMENT: 27/04/2005

BENCH:

ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T

(Arising out of SLP(C) No.17427 of 2004)

ARIJIT PASAYAT, J.

Leave granted.

The core question involved in this appeal is whether a direction for
Deoxyribonucleic Acid Test (commonly known as DNA test) can be given in a
proceeding for issuance of succession certificate under the Indian Succession
Act, 1925 (in short the 'Act').

Challenge in this Appeal is to the order of a learned Single Judge of the Delhi
High Court setting aside the order of learned Administrative Civil Judge, Delhi
dated 20.12.1999 whereby he had allowed an application under Section 151 of the
Code of Civil Procedure, 1908 (in short the 'CPC') filed by the appellant
seeking DNA test of the respondent no.1Smt. Teeku Dutta and Sh. Ram Saran Dass
Sharma, (who is not a party in this appeal). Respondent No.1 has filed case
No.86 of 1944 for grant of succession certificate under Section 372 of the Act.

Background facts in a nutshell are as follows:

The respondent No. 1 filed a petition for grant of Succession Certificate in
respect of the properties of one Iqbal Nath Sharma (hereinafter referred to as
the 'deceased') claiming that she was his daughter and the only surviving Class
I legal heir under the Hindu Succession Act, 1956 (in short the 'Succession
Act'). It was indicated in the petition that the deceased had died intestate
leaving behind five brothers- Sh. Banarsi Dass, Sh. Amar Nath Sharma, Sh. Ram
Saran Dass Sharma, Sh. P.L. Sharma and Sh. K.C. Sharma. Originally Sh. Banarsi
Dass was not impleaded and rest four were impleaded. Out of them Sh. P.L. Sharma
and Sh. K.C. Sharma had expired and only Amar Nath Sharma and Ram Saran Dass
Sharma were alive and were impleaded as respondents to the petition. During the
pendency of the petition Banarsi Dass, was also impleaded. He filed objection to
the grant of Succession Certificate disputing Mrs. Teeku Dutta's claim. It was
stated that she was not the daughter of the deceased. Evidence has been led and
documentary evidence was also filed in support of the respective stands. At this
stage the application under Section 151 CPC was moved by the objector Banarsi
Dass alleging that the respondent Mrs. Teeku Dutta was not the daughter of the
deceased, but in fact is the daughter of Ram Saran Dass Sharma and since the
deceased and his wife both were dead it would not be possible to subject them to
a DNA test and compare with the DNA test of Mrs. Teeku Dutta. Since Ram Saran
Dass Sharma is alive, DNA test of Sh. Ram Saran Dass Sharma and Mrs. Teeku Dutta
would conclusively establish the paternity of Mrs. Teeku Dutta. The application
was opposed on the ground that it was malafide and was made with a view to delay
the proceedings. It was further stated that the DNA test would not serve any
purpose as sufficient documentary evidence has already been brought on record.
The trial court allowed the application primarily on the ground that Mrs. Teeku
Dutta had initially concealed the fact that the deceased had five brothers and
had deliberately left out Banarsi Dass Sharma from the array of respondents, and
this casts doubt on the bonafides of the applicant's claim of being the daughter
of the deceased. The trial court considered the petition for grant of succession
certificate and the "no objections" filed by other respondents namely Ram Saran
Dass and Amar Nath Sharma to be somewhat collusive. Another reason which appears
to have weighted heavily with learned trial judge was that the documentary
evidence brought on record was not cogent enough to show that she was the
daughter of the deceased. Further the trial court held that since the applicant
for the DNA test was willing to bear the cost of the said DNA test, there would
not be any difficulty in directing DNA test.

The High Court found that this is not a fit case where such a direction could be
given. It was noticed that the scope of the enquiry was very limited and the
trial court being a testamentary court should have left the parties to prove
their respective cases by such evidence produced during trial, rather than
creating evidence by directing DNA test. Accordingly, the Revision Petition
filed under Section 115 of the CPC by Mrs. Teeku Dutta was allowed.

In support of the appeal learned counsel for the appellant submitted that the
trial court had kept in view the correct perspectives of the case and instead of
leaving the matter to be decided by oral and documentary evidence, the High
Court should have held that the conclusive DNA test would have provided
necessary material for an effective adjudication.

Learned counsel appearing for the respondents submitted that the order of the
High Court is based on the correct legal position as regards the desirability of
DNA test in such matters.

In Goutam Kundu v. State of West Bangal and Another (1993 (3) SCC 418) this
Court held, inter alia, as follows:

"(1)That courts in India cannot order blood test as a matter of course;

(2)Wherever applications are made for such

prayers in order to have roving inquiry, the prayer for blood test cannot be
entertained.

(3) There must be a strong prima facie case in that the husband must establish
non-access in order to dispel the presumption arising under Section 112 of the
Evidence Act.

(4) The court must carefully examine as to what would be the consequence of
ordering the blood test; whether it will have the effect of branding a child as
a b*st*rd and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.

It was noted that Section 112 of the Indian Evidence Act, 1872 (in short the
'Evidence Act') requires the party disputing the patronage to prove non-access
in order to dispel the presumption of the fact under Section 112 of the Evidence
Act. There is a presumption and a very strong one, though rebuttable one.
Conclusive proof means proof as laid down under Section 4 of the Evidence Act.
In matters of this kind the court must have regard to Section 112 of the
Evidence Act. This section is based on the well-known maxim pater est quem
nuptiae demonstrant (he is the father whom the marriage indicates). The
presumption of legitimacy is this, that a child born of a married women is
deemed to be legitimate, it throws on the person who is interested in making out
the illegitimacy, the whole burden of proving it. The law presumes both that a
marriage ceremony is valid, and that every person is legitimate. Marriage of
filiation (parentage) may be presumed, the law in general presuming against vice
and immorality.

It is rebuttable presumption of law that a child born during the lawful wedlock
is legitimate, and that access occurred between the parents. This presumption
can only be displaced by a strong preponderance of evidence, and not by a mere
balance of probabilities. In Dukhtar Jahan (Smt.) v. Mohammed Farooq (1987 (1)
SCC 624) this Court held:(SCC p. 629, para 12):

"... Section 112 lays down that if a person was born during the continuance of a
valid marriage between his mother and any man or within two hundred and eighty
days after its dissolution and the mother remains unmarried, it shall be taken
as conclusive proof that he is the legitimate son of the man, unless it can be
shown that the parties to the marriage had no access to each other at any time
when he could have been begotten. This rule of law based on the dictates of
justice has always made the courts incline towards upholding the legitimacy of a
child unless the facts are so compulsive and clinching as to necessarily warrant
a finding that the child could not at all have been begotten to the father and
as such a legitimation of the child would result in rank injustice to the
father. Courts have always desisted from lightly or hastily rendering a verdict
and that too, on the basis of slender materials, which will have the effect of
branding a child as a b*st*rd and its mother an unchaste woman."

The view has been reiterated by this Court in many later cases e.g. Amarjit
Kaur v. Harbhajan Singh and Anr. (2003 (10) SCC 228). We may remember that
Section 112 of the Evidence Act was enacted at a time when the modem scientific
advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA)
tests were not even in contemplation of the legislature. The result of a genuine
DNA test is said to be scientifically accurate. But even that is not enough to
escape from the conclusiveness of Section 112 of the Act e.g. if a husband and
wife were living together during the time of conception but the DNA test
revealed that the child was not born to the husband, the conclusiveness in law
would remain irrebuttable. This may look hard from the point of view of the
husband who would be compelled to bear the fatherhood of a child of which he may
be innocent. But even in such a case the law leans in favour of the innocent
child from being b*st*rdised if his mother and her spouse were living together
during the time of conception. Hence the question regarding the degree of proof
of non-access for rebutting the conclusiveness must be answered in the light of
what is meant by access or non-access as delineated above. (See Kamti Devi
(Smt.) and Anr. v. Poshi Ram (2001 (5) SCC 311). The main object of a Succession
Certificate is to facilitate collection of debts on succession and afford
protection to parties paying debts to representatives of deceased persons. All
that the Succession Certificate purports to do is to facilitate the collection
of debts, to regulate the administration of succession and to protect persons
who deal with the alleged representatives of the deceased persons. Such a
certificate does not give any general power of administration on the estate of
the deceased. The grant of a certificate does not establish title of the grantee
as the heir of the deceased. A Succession Certificate is intended as noted above
to protect the debtors, which means that where a debtor of a deceased person
either voluntarily pays his debt to a person holding a Certificate under the
Act, or is compelled by the decree of a Court to pay it to the person, he is
lawfully discharged. The grant of a certificate does not establish a title of
the grantee as the heir of the deceased, but only furnishes him with authority
to collect his debts and allows the debtors to make payments to him without
incurring any risk. In order to succeed in the succession application the
applicant has to adduce cogent and credible evidence in support of the
application. The respondents, if they so chooses, can also adduce evidence to
oppose grant of succession certificate. The trial court erroneously held that
the documents produced by the respondents were not sufficient or relevant for
the purpose of adjudication and DNA test was conclusive. This is not a correct
view. It is for the parties to place evidence in support of their respective
claims and establish their stands. DNA test is not to be directed as a matter of
routine and only in deserving cases such a direction can be given, as was noted
in Goutam Kundu's case (supra). Present case does not fall to that category.
High Court's judgment does not suffer from any infirmity. We, therefore, uphold
it. It is made clear that we have not expressed any opinion on the merits of the
case relating to succession application.

Above being the position, the direction for DNA test as was given by the trial
court is clearly unsustainable and the High Court has rightly set it aside.

Appeal is dismissed with no orders as to costs.

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Advocate

Thanks a lot Mr. Shree.

 
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Advocate

Gutam kundu is the land mark case on DNA TESTING. Thnks shree sir
 
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