The Punjab & Haryana High Court ruled that a man’s right to privacy cannot override a child’s right to know his father. The Court dismissed the man’s plea against a DNA test, saying truth must be established in favour of the child.
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CHANDIGARH: The Punjab and Haryana High Court has recently given an important judgment, holding that the right of a man to privacy cannot be placed above the right of a child to know the truth about his own paternity.
Justice Archana Puri delivered the ruling while rejecting a revision petition filed by a man who had challenged the trial court’s order.
The trial court had earlier allowed a child’s request to compare his DNA with the man’s DNA, claiming him to be his biological father.
The Court observed:
“Justice to this child/plaintiff, is a factor, not to be ignored. Rather, his assertion demands that truth be known, when truth has to be established, as it undoubtedly can. Simultaneously, the right of defendant No.1 [man claimed to be father] to privacy and dignity, also has to be taken into consideration. However, the right of privacy, as such, cannot override the right of the child and vest interest in his favour.”
At the same time, the High Court said the trial court’s direction to allow police force for taking the man’s DNA sample was not needed.
Case Background
The case started when a minor child, through his mother, filed a maintenance plea under Section 125 of the Code of Criminal Procedure (CrPC). The man refused responsibility, saying he was not the child’s father. The child then filed a case to declare that the man was indeed his father.
According to the child, his mother had come into contact with the man in 1988 when she lived as a tenant in his house. With time, a relationship developed, and the child was born in 1990.
The man, however, denied this, claiming the child was from his mother’s previous husband, from whom she divorced in 1994. In 2015, after examining evidence, the trial court allowed a DNA test.
The man then appealed to the High Court, arguing that since the child was born during the subsistence of his mother’s marriage, Section 112 of the Indian Evidence Act applied. This section says that a child born during a valid marriage is considered the legitimate child of the husband, unless proven otherwise by showing no access between husband and wife.
The High Court noted that this law mainly protects children from being branded illegitimate. But in this case, it ruled that Section 112 would not apply.
The Court explained:
“The rationale laid down in the decisions aforesaid, where it was one partner of the marriage, who resisted the parenthood, in any manner, would not apply, where a child on attaining adulthood moves to the Court to assert his paternity. In that eventuality, application of Section 112 of the Indian Evidence Act does not arise.”
The Court pointed out that the child himself, after becoming an adult, was claiming that the petitioner was his father, and even his mother supported this claim.
It further clarified:
“[The] presumption under Section 112 of the Indian Evidence Act, would not arise, when impliedly, additional access of the mother of the plaintiff, at the relevant time of begetting of the plaintiff, at the behest of defendant No.1, is asserted.”
The judges also observed that the child and his mother were fully aware of the social consequences of asking for a DNA test, but they still went ahead to seek the truth.
The Court noted:
“Even, mother of the plaintiff is of mature age and she is bound to be well aware of the consequences of the action of her son and his claim qua the paternity issue. They having come forward unhesitatingly has to be considered.”
The bench also remarked that if the man and child were truly strangers, then no harm would be caused to the man by giving a DNA sample. On the contrary, it would help establish the truth clearly.
The Court said:
“Rather, if he is father, his position will be put beyond doubt by the testing and the paternity as pleaded shall be ascertained. Why there should be any hesitation to undergo this test is not coming forth. Of course, the evidence is to be led by both the sides, but the question arises, when the paternity can be affixed by surer test, then why decision based on legal presumption or gathering of inference, on the basis of the evidence or any gap, on account of misjudgment, be left. Considering all these aspects, this test will surely assist the Court to reach the right conclusion, vis-a-vis, relationship between the parties concerned. That being so, it ought to be undertaken.”
In conclusion, the High Court dismissed the man’s revision plea. However, it clarified that no force should be used against him to collect his DNA.
The Court directed the trial court to record observations depending on the man’s willingness or refusal. It added:
“In the eventuality of any disinclination, on the part of defendant No.1 and the reason therefor, to be recorded by the trial Court, shall be appraised by the trial Court, at appropriate stage, in the backdrop of the other evidence, brought on record.”
- Advocates Akshay Jindal and Vijayveer Singh appeared for the petitioner.
- Advocates Nandan Jindal and Aniket Singh represented the respondents.
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