Recently in news, Delhi high court observed that the duties and obligations of Parent towards their child or children, as the case may be, does not end when then attain the age of majority or in other words when they turn 18 years of age. Irrespective of what the facts of the case are, this observation has its significance in reminding each parent of their obligations, especially during unprecedented situations like today.

Questioning the Paternity and taking DNA tests should also be seen as important tools in facilitating the above obligations properly towards the child of the parent. But the court of law has to hear both sides, that is, they have to take the parent’s rights as well. They should check whether the law enables them (court of law) to decide the matter of such concern or not. This is because these issues of paternity and DNA tests interfere with the Right to privacy of individuals i.e. Parents. Keeping that in mind, this article will look into the concept of Presumption of paternity, DNA tests to determine whether they violate personal liberty and the right to life of persons involved.

Presumption of Paternity & DNA Tests:

What exactly does “presumption of paternity” would mean? In a general sense, it is nothing but the presumption of paternity of any father to his child and can be called as Marital Presumption of Paternity. In other words, any child born to a married couple would be presumed, by law, to be the child of that couple. The main ingredient for such a presumption is the child born out of a valid marriage and if that marriage is illegal or considered to be illegal under law or any customary practices, and then simply, such a presumption of paternity would never arise at all. The significance of presuming paternity can be witnessed through its protection, care, and certain legal benefits to the child, such as Financial supports.

Similarly, DNA Tests are sub-ordinate to the Presumption of paternity and serve the same objective as that of Presumption of paternity of the father. Where the father will prove his paternity over the child through DNA samples and in case if he refuses his paternity, then the law will presume that there is paternity, i.e. he will be presumed to be the Biological father. Now, it is important to look at what Law says on Presumption of Paternity?

Section 112 under chapter 7 of the Burden of Proof of Evidence Act, 1872 deals with the presumption of birth of the child and his/her paternity. It states that any child born during the continuance of valid marriage between any man and mother or within 280 days after the dissolution of the same shall be enough to prove that the child is the legitimate son of that man, unless and until there is strong rebuttal through pieces of evidence that there was no link between the man and mother. DNA tests, on the other hand, were also refused by the court of law, in case there is enough evidence that the children were born during the continuance of valid marriage and when the court records show the same.

Paternity Tests and Right to Privacy:

Are these Paternity tests on fathers who also possess certain fundamental rights that there conferred by the constitution, interfere or, in a specific term, ‘violates’ his right to privacy or not? If it violates, what are his remedies and if not, then the question is ‘are these fundamental rights get waived off just because he is the father and has his obligations towards child’? It becomes very important to balance both. Courts have the ultimate duty to balance the same. Let us scrutinize few cases to determine the judiciary’s stance on this matter.

Article 20(3) and Article 21 has been heavily relied on by the contenting parties when it comes to DNA tests and presumption of Paternity. Article 20(3) provides the right against self-incrimination that is, a person cannot be compelled to be a witness for him. But the same was also challenged and stated that subjecting a person to take a DNA test does not violate the provisions under article 20.
In the case of Sharda v. Dharmpal, (2003), Supreme Court observed that DNA Tests and other technologically developed methods for the determination of paternity are an extreme invasion of the right to privacy and personal liberty of the concerned individual, provided under Article 21 of the constitution. It also observed that presumption under section 112 can only be rebutted under a strong preponderance of evidence and not through mere probabilities.

In another important case of Bhabani Prasad Jena v. Convener Secretary Orissa State Commission for Women (2010), the supreme court observed and laid down that in case of any conflict between the right to privacy and the duty of the court to determine the truth from the disputes arising out of paternity, then the court should balance the interests by interpreting whether DNA test and presumption of paternity is required to come to the truth and to balance the interest of parties or not.

Conclusion:

So far courts have been trying to balance the interests of both parties in case there is a conflict concerning the right to privacy and the requirement of Paternity tests. But there is also an instance where, for the benefit of the wife, children, and on equitable grounds, the courts interpreted in a way to reach the truth. The general rule is that presumption of paternity is subjected to a strong rebuttal from the person concerned. Similarly, DNA Tests have never been refused in case there is the probability of reaching the truth after such a trial. So, the courts have taken a central position between the Right to privacy and Paternity tests, that is to say, courts neither lean towards paternity tests absolutely nor towards the right to privacy. This has been the ideal stand of courts so far.