DNA Test Can Be Ordered Only In Extraordinary Circumstances When There Is No Other Legal Basis To Determine Parentage: Allahabad HC

While ruling on a very significant legal topic pertaining to the most vital criteria as to when a DNA test can be ordered, the Allahabad High Court in a most refreshing, remarkable, robust, rational and recent judgment titled Smt. Mobin and Another vs Dy. Director of Consolidation and 6 Others in Writ – B No. -2526 of 2023 and cited in the Neutral Citation No. – 2023:AHC:216137 that was reserved on 07.11.2023 and then was finally pronounced on 09.11.2023 has held clearly in no uncertain terms that a DNA test can be ordered only in exceptional cases when there is no other legal basis to determine parentage. The Court maintained that a matriculation certificate issued by a school is recognized as sufficient legal proof for determining the date of birth. It must be noted that while making the observation, the Allahabad High Court held that a DNA test is not necessary where such a certificate has not been proved wrong. The Court was deciding this case that cropped out of proceedings that had been initiated under Section 9A (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (in short, “Act, 1953”).

At the very outset, this learned, laudable, landmark and latest judgment authored by the Single Judge Bench of the Allahabad High Court comprising of Hon’ble Mr Justice Saurabh Shyam Shamshery sets the ball in motion by first and foremost putting forth in para 1 that, “This case is arising out of a proceedings initiated under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as “Act, 1953”).”

To put things in perspective, the Bench then envisages in para 2 that, “Parties have not disputed the pedigree so far as relations are concerned that land in dispute was in the name of Yaqoob, who has three sons, namely, Shakeel, Jameel and Furkan. The eldest son Shakeel had married with Petitioner-1, Smt. Mobin on 01.03.1997. However, unfortunately he died on 27.07.1997. It is the case of Petitioner-1 that out of wedlock of Shakeel a daughter was born (Petitioner-2 herein) whereas case of contesting-respondents is that Petitioner-1, after death of her husband, remarried and Petitioner-2 was born out of wedlock with her second husband. It is further case of contesting-respondents that since Petitioner-1 has not taken care of her husband during his life time, therefore, he executed a Will dated 12.07.1997 in favour of contesting-respondents, i.e., his two brothers.”

Briefly stated, the Bench then mentions succinctly in para 3 disclosing that, “Petitioners have lost before all the three authorities, i.e., Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation.”

Needless to say, the Bench states in para 7 that, “Heard learned counsel for parties and perused the material available on record.”

While citing the most relevant case law, the Bench sagaciously observes in para 8 that, “This Court now proceed to consider first argument regarding determination of date of birth on basis of matriculation certificate. In this regard relevant paragraph of a judgment passed by Supreme Court in Sanjeev Kumar Gupta v. State of U.P., (2019) 12 SCC 370 is reproduced hereinafter:

“17. The 2015 Act came into force on 15-1-2016. Section 111 repeals the earlier the 2000 Act but stipulates that despite the repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of the new legislation. Section 94 contains provisions in regard to the determination of age, is in the following terms:

“94. Presumption and determination of age.—(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining—

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the Examination Board concerned, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”

Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the Examination Board concerned in the same category [namely (i) above]. In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the 2007 Rules made under the 2000 Act. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.” (Emphasis supplied).”

DNA Test Only if No Other Legal Basis

Quite significantly, the Bench minces just no words to hold decisively in para 9 that, “In the background of above legal position, matriculation certificate or birth certificate issued from School would be considered to be best evidence to determine date of birth of a person and in the present case according to certificate of matriculation date of birth of Petitioner-2 is 04.05.1999. Therefore, the findings returned by all the three authorities that on the basis of birth date, Petitioner-2 cannot be considered to be the daughter born out of wedlock of Petitioner-1 and Shakeel, since admittedly he died on 27.07.1997, i.e., about one year, 08 months and 07 days before Petitioner-2 was born, cannot be considered to be perverse. Nothing has been brought on record that date of birth mentioned in the document available at School was different. Merely that name of Shakeel was mentioned as father in certificate would not contradict medical opinion that considering gap of 615 days between death of Shakeel and date of birth of Petitioner-2, he could not be her father.”

While citing a very recent, remarkable and relevant case law, the Bench hastens to add in para 10 propounding that, “Second argument of learned counsel for petitioners is with regard to determination of parentage by conducting DNA test that and this Court may pass appropriate direction in this regard. In this regard it would be apposite to extract relevant paragraph of a judgment passed by Supreme Court in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, 2023 SCC OnLine SC 161 as under:

“60. Having regard to the aforesaid discussion, the following principles could be culled out as to the circumstances under which a DNA test of a minor child may be directed to be conducted:

i. That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions.

ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, in order to rebut the presumption under Section 112 of the Evidence Act, a DNA test may not be directed.

iii. A Court would not be justified in mechanically directing a DNA test of a child, in a case where the paternity of a child is not directly in issue, but is merely collateral to the proceeding.

iv. Merely because either of the parties have disputed a factum of paternity, it does not mean that the Court should direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the Court finds it impossible to draw an inference based on such evidence, or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test.

v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance related consequences, social stigma, etc.””

Most significantly, the Bench minces absolutely no words to hold unquestionably in para 11 that, “As held in Aparna Ajinkya Firodia (supra) order to conduct DNA test could not be passed in a routine manner and it has to be passed only in extraordinary circumstances when there is no other legal basis to determine parentage of person concerned and since in the present case there is a document which is recognized to be sufficient legal proof of determination of date of birth, i.e., matriculation certificate, therefore, no circumstance exist to pass an order for DNA test.”

Be it noted, the Bench notes in para 12 that, “The submission of learned counsel appearing for contesting-respondents that even in view of Section 171 of Act of 1950 petitioners have no right to claim ownership on property of Shakeel since Petitioner-1 has admittedly remarried, has legal force and this argument has not been seriously disputed by learned counsel for petitioners, therefore, this issue also held against petitioners. Accordingly any challenge to “Will” at behest of petitioners has also no basis. A factor that Petitioner-2 (now major) has independently never taken any step to claim her right, if any, over land in dispute, also held to be against the petitioners.”

Resultantly, the Bench then aptly concludes by finally holding in para 13 that, “In view of above discussion, I find no illegality or irregularity in impugned orders warranting interference under Article 226 of Consolidation of India. Writ petition is accordingly dismissed.”

In sum, we thus see that the Allahabad High Court has made it indubitably clear that a DNA test can be ordered but only in extraordinary circumstances when there is no other legal basis to determine parentage. So we thus see that the Allahabad High Court very rightly dismissed the writ petition. There can be just no denying it!

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February 2024