The Allahabad High Court recently ordered a man to either pay maintenance to his children or undergo a DNA test to prove his claim that he was not their father.
The Court was hearing a petition challenging a family court order directing the man (petitioner) to undergo a DNA test since he had refused to pay maintenance to the children on the allegation that they were not his.
The family court had passed the order in November 2021 on an application moved by the man’s wife under Section 125 of Code of Criminal Procedure (CrPC).
It was the husband’s case that the woman was not his legally wedded wife as she was earlier married to another man who had been missing for many years now.
It was also argued that a court cannot compel the husband to undergo a DNA test without his consent.
However, the wife submitted that she married the petitioner in 2007 and that they have two children. He had borne the entire expenses for their delivery, the Court was told.
It was also alleged that the name of the father of the children in school records was changed in connivance with the school headmistress, and that a criminal complaint was lodged in this regard.
To decide on the case, the Court looked at the legal principles and precedents on DNA tests in paternity dispute cases.
In particular, the Court perused Section 53 (examination of accused by medical practitioner at the request of police officer) of the CrPC and an explanation to this provision which states that “examination” includes DNA profiling.
“This explanation was added by way of amendment in 2005, which makes it clear that the profile examination includes blood, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clipping by the use of modern and scientific techniques including DNA profiling and such other test, which a doctor thinks necessary in a particular case,” it noted.
While highlighting the implications of unresolved paternity disputes, the Court said the best interests of children should be of paramount consideration in all matters concerning them.
The right to maintenance is not merely a legal provision but is deeply rooted in fundamental human rights, the Court added.
“The Universal Declaration of Human Rights recognizes the right to an adequate standard of living, which includes food, clothing, housing, and medical care. In the context of children, maintenance is indispensable for their survival, growth, and development. Denying maintenance due to unresolved paternity issues would be a violation of their basic human rights,” the Court held.
In the present case, the Court opined that the man cannot be allowed to blow hot and cold at the same time by denying paternity of the children and then also refusing to undergo the DNA test.
“If he is doubting the paternity the only way to prove his case is by the DNA testing. Moreover, the applicant cannot equate the DNA test with the other tests like Narco test which needs a prior consent. Explanation 53 of Cr.P.C. now makes it abundantly clear ‘examination’ would include DNA parentage,” the Court observed.
Thus, it directed the man to either fulfil his obligation to pay maintenance or undergo the DNA test as ordered by the family court. Otherwise, an adverse inference under the Indian Evidence Act could be drawn against him, the Court pointed out.
“This Court hereby order the applicant to either fulfil his obligation of providing maintenance or undergo a DNA test, thereby dispelling any adverse inference drawn pursuant to Section 114, Illustration (h) of the Indian Evidence Act, 1872,” the Court ordered.
