I want your advice on my case we performed paternity DNA test without the consent of child mother and the result came out negative, can we put our paternity report into the court as adultery evidence. If we submit report as a paternity proof in court, Is there any chances that court can take action against us to perform test without court order/permission(Note: My brother is a govt emp) and mother consent. If we file the case on the basis of adultery without having any proof and not on the basis of our DNA report than it is possible that court can order for DNA test as we heard that court asked some adultery evidence to allow for DNA test. If we present paternity report to girl for out of court settlement for mutual divorce & finally she is not agreed and filed case against us, still can we submit report in court as adultery proof? (Note: Our paternity test report date will be prior to their case submission date)
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It is not advised that you put forth a report which has been prepared without consent. On basis of other documents or evidences you can file a case of divorce and then you can request the court to order a paternity test.
As advised, the above will be a good course of action for you.
Regards
1. There will be no adverse action on the part of court of you attach the DNA test report.
2.on the contrary you must attach such report.
3.The report is of not much importance unless and until afresh report is made on the order of court.
4.So get such order of fresh test it is necessary that you show the court the previous report.
It is not a test that was conducted with the permission of the court, so a report obtained by you privately on your own will have no evidentiary value. The correct procedure is to apply to the court to order paternity test in a govt hospital. A report obtained independently from a private hospital will not be given any weightage.
The private DNA test has no validity and could not use in evidence. IF you need to take a DNA test you have to file petition for that before the court.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, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.
DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the wife is right, she shall be proved to be so. Section 112 of the Indian Evidence Act also creates a legal presumption that the birth of a child during marriage would be a “conclusive proof of legitimacy.”
Supreme Court judgment is meant to protect the honour of the child and its mother. In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect.
The presumption of legitimacy is a presumption of law. When a child is born out of wedlock, there is a presumption in favour of his legitimacy and the presumption largely depends on the presumed fact that the parties to a marriage have necessary access to each other when a divorce petition is filed.
The courts have always adopted a judicious approach after weighing the material on record by posing a question whether there exists sufficient material on record to dispel the presumption as to legitimacy at the behest of the person challenging the legitimacy warranting such direction or not and thereafter arrived at the positive finding as to the conducting and non conducting of the DNA tests on case to case basis.
Courts do not order DNA tests just because you think you are not the father of the child.
That is for two reasons:
(a)Woman's chastity should not be put to test just because the husband doubts her; and
(b) Child should not be bastardized unless there are strong irrefutable grounds.
Husbands will not be allowed by Courts to go on a fishing expedition seeking the Courts to be involved to satisfy their doubts. So in your case , you have to establish the need for DNA test and convince the ingredients of Section 13(1)(i) of the Hindu Marriage Act.
1) SC has held that a DNA test can be ordered by courts as a “legitimate and scientifically perfect” tool to establish adultery in divorce cases.
“DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the wife is right, she shall be proved to be so
2) better apply for DNA test on child as but for the test, it would be impossible for the husband to establish and confirm the assertions of adultery made against wife in his divorce petition.
3) if wife refuses to permit DNA tests on child adverse inference can be drawn by court
4)you can if you so desire rely upon paternity test report in your adultery case
I know court cannot give decision on the basic of current paternity report but I have no other evidence to proof the adultery. (Note: I am aware if I will file case on the basis of current report court will order fresh paternity test) Question: Scenario 1: With current report Q 1: Is there any adverse impact if I will submit current paternity report in court? (Note: Father is Govt. Emp.) Q 2: If both parties agreed out of court settlement before filing divorce case but later on if she file maintenance case, is it possible we can submit this report and deny to give maintenance? Q 3: If we go for out of court settlement and she denied & filed some false cases against us than on the basis of this DNA report what are the leverages we get. Scenario 2: Without Any Evidence 2: If I will file case without this paternity report how I can request court to order paternity test, As I have no adultery evidence and it is impossible to get any evidence. So please guide in this scenario. Note: It is impossible to get any adultery evidence so I request you to not to suggest us to hire any detective or get the evidence.
1) there is no adverse impact if you submit paternity tests in court
2) in case wife files maintenance case you can rely upon paternity test report
3) if wife files false case deny you are the father of child . Rely upon paternity test report
4) rely upon SC judgment cited herein above where SC has held DNA test can help in proving adultery abd court can order DNA test
The adultery case cannot be proved without evidence for adultery and the name and address of the adulterer.
The DNA test is not conclusive proof for that.
If she objects to the DNA test and reiterates that she is ready to undergo DNA test through governmental agency, then you have no chance than to agree to her prayer.
“DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the wife is right, she shall be proved to be so.
Section 112 of the Indian Evidence Act also creates a legal presumption that the birth of a child during marriage would be a “conclusive proof of legitimacy.”
The Supreme Court, in a 2001 judgement, had held: “The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g, if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable.”
1. If you apprehend that the court may not entertain the paternity test result you obtained privately, you may seek the court to permit you to obtain the report afresh.
2. Maintenance cannot be denied due to infidelity.
3. If she files false cases then you may have to challenge them on merits in your side.
4. Based on the suspicion about her chastity or if you suspect she to be in infidelity then you can very well seek the permission of court for ordering her to undergo DNA test to prove the paternity
Adultery is a ground for divorce under Section 13(1)(i) of Hindu Marriage Act,In Shivakumar v Premavathi it was held that stamping the child as an outcome an adulterous relation or charging a woman for extramarital intercourse is a serious thing with legal consequences. No woman can be blamed for an adulterous relation relationship and no child can be called as illegitimate unless there is conclusive evidence in support of such conclusions. The case of Sunil Eknath Trambake v Leelavati Sunil Trambake clarified that in the matter of proving the paternity of a child, a DNA test can be ordered only in exceptional and deserving cases if it is in the interest of the child. The charge of adultery is serious as it casts aspersions on the character of the spouse affecting his/her reputation in the society besides raising question marks in terms of the parentage of the child delivered by the wife, therefore not only the charges of adultery should be specific but also should be established in all probabilities. The proceedings for adultery, under the Hindu Marriage Act, are in the nature of quasi-criminal, as such, higher standard of proof than mere preponderance of probabilities is required as was held in Partap v Veena.
So you have to establish your case. How and to who the adulterous relationship done.
1. Yes, because the same has not be done with the permission of other party.
2. If you two will settle the terms mutually then there will be a clause to the effect that no party will file a case for maintenance in the future.
3. Her claims will be nullified on the basis of the report.
1. You can ask the court to order paternity test and the same will be done by the order of the court Sir.
Regards