Order DNA tests if unavoidable, courts told

August 4th, 2010 - 11:25 pm ICT by IANS  

New Delhi, Aug 4 (IANS) The Supreme Court has said that courts should exercise extreme caution in ordering a DNA test to determine the paternity of a child as this could end up damaging his or her reputation.
In a matter where the paternity of a child is questioned, the use of DNA test is an extremely delicate and sensitive aspect, said an apex court bench of Justice Aftab Alam and Justice R.M. Lodha.

The court said that “sometimes the result of such a scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception”.

The judgment delivered Tuesday referred to American and British cases wherein it has been held that “blood tests cannot show positively that any man is the father, but they can show positively that a given man could or could not be the father”.

Extracts from these cases showed that when two men had sex with a mother at the time of her conception, there are 90 percent chances that the DNA test would show that one of them is not the father, with the “irresistible inference that the other is the father”.

The judgment, written by Justice Lodha, said: “DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner.”

The judgment said that whenever such a request is made, the court had to consider diverse aspects, including the test of “eminent need”, whether it is not possible for the court to reach the truth without the use of such a test.

“In our view, the court must balance the apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and the duty of the court to reach the truth.

“Obviously, therefore, any order for a DNA test can be given by the court only if a strong prima facie case is made out for such a course,” the judgment said.

In the instant case, a plea had been filed challenging an Orissa High Court judgment which had ordered a DNA test of a child.

The court allowed the appeal and set aside the order of the Orissa High Court of Aug 7, 2009 and May 11, 2009 order of the Orissa Commission for Women.

The court also examined the powers of the state commission for women.

On May 15, 2007, Bhabani Prasad Jena, the appellant, married Suvashyree Nayak. The certificate of marriage was issued by the marriage officer of Khurda town June 30, 2007.

In less than three months, Aug 7, 2007 Jena filed a petition in the court of the district judge of Khurda for a declaration that the marriage was null and void and had not been consummated.

On Dec 30, 2008 Suvashree Nayak filed a complaint before the Orissa Commission for Women alleging that she was married to Jena and due to the torture meted out to her, they had separated.

She also claimed permanent alimony of Rs.10 lakh. She claimed maintenance as she could have a safe delivery.

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