DNA test to check the paternity of the child cannot be directed to perform unless the wife has an illicit relationship

DNA test to check the paternity of the child cannot be directed to perform unless the wife has an illicit relationship written by Avdhesh Parashar student of Maharashtra National Law University Aurangabad

RAMKANYA BAI vs. BHARAT RAM

FACTS OF THE CASE:

The present appeal/SLP was preferred by the wife/appellant against the impugned Judgment and order of Madhya Pradesh High Court, Indore bench passed on 26th June 2008. Appellant and respondent were getting married in April 1999. The wife, after some time, was harassed by the husband/respondent and turned out of her matrimonial house. In 2004, the husband filed an application under Section 13 of the Hindu Marriage Act in the Court of Additional District and Session Judge, District Mandsor, Madhya Pradesh. The district court dismissed the application of the husband/respondent. A child was born to wife in November 2004 and the husband filed an appeal under section 28 of Hindu Marriage Act in Madhya Pradesh High Court, Indore Bench and asked for an order for performing a DNA test for the paternity of child on the ground that such child could not be born out of the wedlock between appellant and respondent. The Madhya Pradesh High Court, Indore Bench passed an order on 26th June 2008 in favor of the husband and directed to perform DNA test for paternity of the child and made the following observation that is reunited.”

ISSUE:

Whether the order to perform a DNA test is legally valid or not on the sole presumption of re-union of parties?

RULE OF LAW:

Section 13 of the Hindu Marriage Act, 1955
Section 28 of the Hindu Marriage Act, 1955

JUDGEMENT:

The learned bench of Hon’ble Supreme Court observed that there is no justification for allowing to perform the DNA test of a child only on the ground that there is a possibility of re-union of parties if the legality of the child to be proved and if it is proved that the child was an outcome of the wedlock between the parties. Also, the court observed that there is no allegation of illicit relationship with the third person by husband/respondent on wife/appellant, by which a DNA test can be performed for the paternity of a child. The Court mentioned that “It is well settled that the presumption of legitimacy is a presumption of law”. So, if a child is born out of wedlock there is a presumption of his/her legitimacy unless and until there is any allegation over the wife to have been in an illicit relationship with a third person.
Therefore, The Hon’ble Supreme Court set aside the impugned order of the Madhya Pradesh High Court dated 26th June 2008, and the application to performing the DNA test on the child of wife/appellant is hereby rejected.