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    Posted January 26, 2014 by
    Mumbai, India
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    Supreme Court acknowledges DNA Test to ascertain Paternity Fraud in India



    In a yet another heart wrenching but a true predicament, the Hon’ble Supreme Court of India stayed firm on the side of truth stating, “Truth must triumph” is the hallmark of justice.


    While hearing a Criminal appeal filed by a husband to challenge the maintenance claimed by his wife u/s 125 of Cr.P.C., the Supreme Court acknowledged the need for the new modern age science and its impact on the Justice Delivery System of India by accepting Paternity DNA Test as the ultimate conclusive proof for ascertaining matters relating to Paternity disputes, which is crucial in deciding appeals relating to maintenance and other reliefs to a Petitioner wife.


    The Bench comprising of Justice C.K. Prasad and Justice J.S. Khehar set aside the 142 year old Presumption of Paternity or Legitimacy under Section 112 of the Indian Evidence Act by stating that, the Evidence Act was enacted at a time when the new age modern science and DNA tests were not available. Though Section 112 of the Evidence Act puts down a presumption for children born out of subsisting marriages, this presumption could be tested and set aside through DNA test in order to ascertain parenthood of children born out of subsisting marriages, as the results of such DNA Tests are scientifically accurate.


    It further stated: “……..When there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former." The apex court subsequently absolved the husband of the burden of paying maintenance to the child.


    As a result of this ruling from the apex court, DNA Test would now become a judicially acceptable exercise to ascertain parenthood of children born out of subsisting marriages.


    Considering the loopholes in the age old Indian Evidence Act being misused by many, the apex court also highlighted the differences with regards to its decision in the cases of Goutam Kundu vs. State of West Bengal (supra), Banarsi Dass (supra) and Bhabani Prasad Jena (supra) stating that, the same have no bearing in the facts and circumstances of this case, as, in all these cases, the court was considering as to whether to pass an order for DNA test, whereas, in this case the order for DNA test has already been passed and the report is available.


    Such a situation reflects the sheer conflict between the facts turned up by the scientific tests and a law that had been scrupulously followed by courts in India for over 140 years. Considering the huge unawareness along with the social stigma to be faced from the society at large, majority of such cases get buried under the carpet thereby giving way to a precarious situation looming ahead of us.


    To its utter dismay lies the heart broken and life threatening trauma faced by a man to even cope-up with those moments of the worst ever Betrayal, Fraud and Deceit committed by his spouse itself, which is literally inevitable to be erased from one’s life. Finally, this judgment brings a ray of hope to all those who had inevitably become the victims of such derogatory acts of Fraud. It is indeed a long way till the apex court holds the woman responsible for such an act punishable under Law.


    Not only does it bring to light the crucial responsibility for the State Parties to provide appropriate assistance and protection to the child, with a view to re-establishing speedily his or her identity, as stated under Article 8 of the United Nations Conventions for the Rights of the Child, but also does it raise the crucial necessity for the enactment of a Paternity Fraud Act in India and mandate DNA Test results on the Birth certificate of every new born, none of which exists in India as of today, which is a sheer contrast to the amendments brought forward by the Judiciaries of other developed Nations.


    It also calls for the inclusion of women under Section 497 of the IPC (Adultery), thereby making them equally responsible for any act of Paternity Fraud or Adultery, which as of today does not and hence it challenges the very premises of the Article 14 of the Indian Constitution demanding the Right to Equality by all.


    It surely beacons the need for urgent Judicial Reforms, which not only would be helpful in reducing the burden of pending litigations across multiple courts across India, but would also be helpful in addressing litigations pertaining to Child Swapping cases, matters of Consanguinity, faster investigation of crimes and faster solutions and recovery of medical emergencies going forward.

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