Case Note & Summary
The petitioner, husband, filed a writ petition challenging the order of the Family Court, Belgaum, dated 21.11.2015, which rejected his application (IA No.10) under Order 26 Rule 10(A) read with Section 151 CPC and Section 45 of the Indian Evidence Act for a DNA test of himself, his wife (respondent No.2), and the minor child (respondent No.1) to determine paternity. The husband had filed a suit for declaration that the child was not his daughter, contending that the marriage took place on 20.05.2007, but the wife left the matrimonial home within two weeks, and they had no access after June 2007. The child was born on 09.10.2009. The wife had earlier filed a maintenance petition, and the Family Court granted maintenance of Rs.750 per month from 02.08.2010. The husband argued that since there was no access, the child could not be his. The Family Court rejected the DNA test application. The High Court, in this writ petition, considered whether the Family Court's order was justified. The Court held that the application for DNA test was filed belatedly after the suit was pending for three years, and the husband had not established non-access. The Court observed that the presumption of legitimacy under Section 112 of the Indian Evidence Act applies when a child is born during wedlock, and DNA test cannot be ordered as a matter of course. The Court dismissed the writ petition, upholding the Family Court's order.
Headnote
A) Family Law - Paternity - DNA Test - Order 26 Rule 10(A) CPC, Section 151 CPC, Section 45 Indian Evidence Act - Application for DNA test to determine paternity of child born during separation - Family Court rejected application - High Court upheld rejection, holding that DNA test cannot be ordered as a matter of course and that the presumption of legitimacy under Section 112 of the Indian Evidence Act applies when the child is born during wedlock, unless non-access is proved (Paras 1-6).
Issue of Consideration
Whether the Family Court was justified in rejecting the application for DNA test to determine paternity of the child born during the period of separation of the spouses.
Final Decision
The High Court dismissed the writ petition, upholding the order of the Family Court rejecting the application for DNA test.
Law Points
- Order 26 Rule 10(A) CPC
- Section 151 CPC
- Section 45 Indian Evidence Act
- DNA test
- paternity
- presumption of legitimacy
- Section 112 Indian Evidence Act
- access
- burden of proof
Case Details
2016 LawText (KAR) (01) 34
Writ Petition No.114645/2015 (GM-FC)
Sri. G B Naik and Smt P G Naik
Shri. Riyazahmed Abdulsattar Nagarchi
Kumari Shipa (minor) and Smt. Shehnaz @ Tabassum
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging the order of the Family Court rejecting an application for DNA test in a paternity suit.
Remedy Sought
Petitioner sought to set aside the order dated 21.11.2015 of the Family Court, Belgaum, rejecting IA No.10, and to allow the application for DNA test.
Filing Reason
Petitioner denied paternity of the child born to his wife during their separation and sought DNA test to prove that he is not the father.
Previous Decisions
Family Court, Belgaum, in OS No.20/2012, rejected IA No.10 filed by the petitioner for DNA test. Also, in Criminal Misc. No.330/2010, the Family Court granted maintenance of Rs.750 per month to the wife and child from 02.08.2010.
Issues
Whether the Family Court erred in rejecting the application for DNA test to determine paternity.
Whether the presumption of legitimacy under Section 112 of the Indian Evidence Act applies in this case.
Submissions/Arguments
Petitioner argued that he and his wife had no access after June 2007, and the child born on 09.10.2009 could not be his, thus DNA test was necessary.
Respondents opposed the application, contending that the child was born during wedlock and the presumption of legitimacy applies.
Ratio Decidendi
DNA test cannot be ordered as a matter of course; the presumption of legitimacy under Section 112 of the Indian Evidence Act applies when a child is born during wedlock, and the burden is on the husband to prove non-access. The application for DNA test was filed belatedly and without establishing non-access.
Judgment Excerpts
The petitioner who is the plaintiff in the Trial Court had filed the above writ petition for the writ of certiorari to quash the order dated 21.11.2015 passed by the Family Court, Belgaum rejecting his application under Order 26 Rule 10(A) read with Section 151 of the Code of Civil Procedure and Section 45 of the Indian Evidence Act for DNA test of the plaintiff and defendant No.2 to find out the paternity of the 1st defendant.
Procedural History
The petitioner filed OS No.20/2012 in the Family Court, Belgaum, for declaration that the 1st defendant is not his daughter. During the pendency of the suit, he filed IA No.10 for DNA test, which was rejected on 21.11.2015. He then filed the present writ petition under Articles 226 and 227 of the Constitution of India.
Acts & Sections
- Code of Civil Procedure, 1908: Order 26 Rule 10(A), Section 151
- Indian Evidence Act, 1872: Section 45, Section 112
