Even as a pending paternity suit against former Andhra Pradesh governor N.D. Tiwari had thrown up the question on DNA test to determine the paternity in such disputes, the Supreme Court in an important judgment ruled against using the technology, saying it will have serious social consequences for any child whose paternity is in question.
“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,” a bench of Justices Aftab Alam and R.M. Lodha held. The top court went on to caution the courts below, including the high courts, not to resort to DNA tests while determine the cases relating to paternity disputes, particularly when there was direct conflict between the right of privacy and the question of the paternity.
The top court though did not order complete ban on the DNA tests but said “the courts must exercise the discretion only after balancing the interests of the parties (in a case) and on due consideration whether the DNA test is eminently needed.”
“In a matter where paternity of a child is an issue before the court, the use of DNA is an extremely delicate and sensitive aspect… and should not be directed by the courts in a routine manner, whenever such a request is made,” the bench said. The top court said that ordering the DNA test would not only have “serious” social implications for the child, but would have “adverse” effect on the provisions of the Evidence Act.
Even though acknowledging a wide debate in the country on the issue, he court said one view supported the use of the modern science to ascertain the paternity of a child, while the other view was that the use of such advanced scientific “tool” would amount to the “invasion” of the right of privacy of an individual, guaranteed by the Constitution.
The supporters of the right to privacy have argued that the result of DNA tests “may not only be prejudicial to the right of the parties but may have devastating effect on the child for his whole life,” the top court pointed out and added that any order of such test could be given by the courts only if a “very strong prima facie case is made out.”
The important verdict, placing constitutional right of privacy at a much higher pedestal, came in a unique case where the Orissa state commission for woman had ordered DNA test when a woman approached it, accusing her husband of ill treating her.
On the other hand, the husband had questioned the paternity of their child claiming that his marriage with the woman had not even “consummated”.