R. Rajendran vs Kamar Nisha and Others

Held: Respondent no.1 in the present case seeks a direction for DNA testing precisely to dislodge the statutory presumption of legitimacy that safeguards the child, and to establish the appellant as the biological father so as to sustain the criminal charges of cheating and harassment – In the case at hand, the child was born on 08.03.2007, during the subsistence of a valid marriage between respondent no.1 and AL, solemnized in the year 2001 – The statutory presumption u/s.112 of the Evidence Act operates in favour of AL being the legitimate father of the child – This presumption can be displaced only by proving non-access between the spouses – It is the case of respondent no.1 that AL deserted her sometime in 2008-2009, well after the child had attained the age of approximately one and half years – No material has been placed on record by respondent no.1 to substantiate her claim of desertion, which remains a bare assertion unsupported by any evidence – It is also not the case of respondent no.1 that AL was suffering from any physical incapacity or impotency – Respondent no.1 has not indicated any circumstance even remotely, suggesting that AL was physically absent during the relevant time when the child could have been conceived – At its highest, respondent no.1’s case is one of simultaneous access, that she had physical relations with the appellant while still married to AL – Mere simultaneous access does not negate the husband’s access, nor does it suffice to displace the statutory presumption u/s.112 of the Evidence Act – DNA test would not serve the best interests of the parties – In the present case, this balance weighs decisively against ordering DNA testing – Such a direction would constitute a significant intrusion into the privacy and dignity of both, the appellant and the child, implicating the fundamental right to privacy guaranteed u/Art.21 of the Constitution of India – The child has now attained majority – At the time when the FIR was registered and the direction for DNA profiling was issued by the High Court, the child was still a minor – In such circumstances, the best interests of the child ought to have been a paramount consideration before any intrusive forensic procedure was contemplated – The paternity of the child is collateral to the primary allegations of cheating and harassment – The FIR itself reveals that the gravamen of the allegations bears no nexus to the paternity of the child – The offences alleged do not, by their nature, necessitate ascertainment of paternity or any forensic determination through DNA analysis – Thus, the impugned judgment of the High Court cannot be sustained. [Paras 42, 35, 45, 51, 53, 58] Evidence Act, 1872 – s.112 – Birth during marriage, conclusive proof of legitimacy – Presumption:

Held: It is evident from the statutory language of the provision, that it establishes a conclusive presumption in favour of legitimacy of a child born during the subsistence of a valid marriage – Embedded in this presumption is the legal recognition that the husband is deemed to be the father of the child born to his wife – This presumption also operates as a safeguard against unwarranted intrusion into the legally protected status of legitimacy, thereby ensuring stability in familial relationships and the protection of child’s legal and social identity. [Para 23]

Evidence Act, 1872 – s.112 – “Access” or “non-access”: Held: “Access” or “non-access” u/s.112 of the Evidence Act must be understood in a very narrow and specific sense, referring to possibility of sexual relations between the spouses – Non-access denotes the impossibility, not merely the absence or lack of such opportunity – Even where cohabitation exists, non-access may arise due to impotency, serious illness, physical incapacity or absence during the relevant period – Conversely, the lack of cohabitation alone does not establish non-access, nor does the existence of extramarital relations, separate residences, or non-communication. [Para 25]

Evidence Act, 1872 – s.112 – Access and non-access between the spouses – Allegations of multiple or simultaneous access by third parties:

Held: Allegations of multiple or simultaneous access by third parties do not negate the access between the spouses or establish non-access – Likewise, infidelity on the wife’s part does not, by itself, displace the presumption of legitimacy if the husband had access – The focus remains on the child’s birth, while the time of conception is relevant only to determine whether access between the spouses existed. [Para 26]

Evidence Act, 1872 – Principles Governing DNA Profiling: Held: This Court has consistently held that DNA testing cannot be ordered as a matter of course and must be subject to stringent safeguards to protect the dignity of individuals and the legitimacy of children born during the wedlock – The power to direct such tests must be exercised with utmost circumspection and only when the interests of justice imperatively demand such an intrusive procedure – Courts must remain vigilant against fishing inquiries masquerading as legitimate requests for scientific evidence, ensuring the sanctity of family relationships is not compromised by speculative or exploratory investigations. [Para 28] Evidence Act, 1872 – s.112 – Where the legitimacy of a child is questioned:

Held: In a case where the legitimacy of a child is questioned, the degree of proof, to rebut the presumption u/s.112 of the Evidence Act, is extremely crucial – The standard of proof required to displace the presumption u/s.112 of the Evidence Act must be higher than mere preponderance of probabilities, yet need not reach the exacting criminal standard of proof beyond reasonable doubt – The standard must be sufficiently rigorous to ensure that there existed no possibility of child being conceived through the husband – This intermediate threshold serves the twin objectives of preventing the illegitimization of the child on the strength of mere assertions or tilting of probabilities, while simultaneously guarding against weaponization of the statutory presumption to defeat the legitimate claims – The person seeking to rebut this presumption must, therefore, adduce strong, cogent and unambiguous evidence establishing non-access, failing which, the statutory presumption must prevail. [Paras 33, 34]

Evidence Act, 1872 – Ethical and psychological dimensions of directing DNA testing:

Held: The process (DNA testing) though scientific, is not without profound ethical and emotional implications – The act of extracting and analysing one’s genetic material intrudes into the innermost sphere of personal identity, autonomy, and privacy – It can have lasting emotional and social ramifications not only for children but also for adults, as such testing often brings to surface intimate aspects of familial and personal relationships – Judicial and ethical prudence both require that autonomy, dignity and emotional well being of the individual, especially of a minor, be safeguarded – A direction for DNA testing without considering the ramifications causes risks inflicting an irreversible psychological and social harm. [Para 51]

Criminal law – Evidence – Paternity as a collateral factor to criminal charges:

Held: A direction for DNA testing must have a direct and demonstrable nexus with the offences under investigation – In the absence of such nexus, compelling a person to undergo DNA profiling, amounts to unwarranted intrusion into bodily autonomy and privacy, contrary to the safeguards implicit in Arts. 20(3) and 21 of Constitution of India. [Para 54]

Code of Criminal Procedure, 1973 – ss. 53 and 53A: Held: These provisions are intended to be invoked in the cases involving offences where medical examination of the accused, including the collection of blood, semen, hair samples, or nail clippings, may furnish material evidence directly bearing upon the commission of the offence – While these provisions contemplate the use of modern scientific techniques such as DNA profiling, their application is conditioned upon the existence of a clear and proximate nexus between the examination sought and the alleged offence. [Para 56]