It has implications for financial support and inheritance rights. On the other hand, a man may be asked for child support for a child that he does not believe is his. Even if a man disputes paternity, if he has been named by the mother as the father of her child, he will have to pay child maintenance until DNA testing proves otherwise.
In all these cases, a mother may refuse a paternity DNA test. The reasons for refusing are wide-ranging and some downright harrowing.
Some involve mothers being hesitant of the process and the implications involved. Some are avoiding the forced continuation of abusive relationships. Some are uncooperative as they simply do not want the father to be involved in any way with the upbringing of their child. Relationships may have broken down, the parents may have moved on and started new relationships, the mother may have identified another potential father figure for her child.
In most stable relationships, paternity is rarely an issue. In other cases, the mother may genuinely not know who the father is following a succession of partners. What are paternity tests?
Paternity tests prove parentage by analysing DNA within samples provided by the family members. When testing a biological father, both child and father will share identical sections of DNA at each marker. When the tested man is not the biological father there will be differences in the DNA. There are two types of paternity tests available: Peace of Mind and Legal.
Peace of Mind DNA testing kits can be easily acquired at local High Street stores 2 such as Home Bargains, or they can be posted direct to your home from our testing laboratory.
Full instructions tell you how to simply and painlessly collect your DNA samples usually cheek buccal cells using the swabs contained in the kits. After returning the samples to our in-house laboratory for analysis, the results are available the next working day, or even same day if needed. Legal paternity tests are needed to stand as evidence in court. To comply, they must be performed under specific instructions, known as chain of custody.
Trained sample collectors ensure that the correct individual is providing the sample by checking ID, taking photographs and getting signed paperwork. In other words, the DNA sample does not leave the custody of those who are legally responsible for ensuring the authenticity of its results. These legal tests could still be done in your own home, but a sample collector would need to attend. The collectors pass the samples to AlphaBiolabs, an accredited testing company, to carry out the tests and to provide a report.
AlphaBiolabs is accredited by the Ministry of Justice 3 and has its own website where further information on paternity testing is available including the cost. There are various pieces of key legislation which determine how courts approach disagreements between parents about their children. It has been updated by subsequent Acts of Parliament, most notably the Children and Families Act , but remains the most important part of the law for separated parents.
The court may issue a direction that DNA tests are performed to determine parentage. In other words, a mother could be forced to undertake a paternity DNA test. A mother could refuse a Peace of Mind paternity test. They will ask the man about his knowledge and relationship of the mother, sexual relations and contraception behaviour, why the man denies paternity, and if any DNA testing has been done in the past.
Finally, they will ask if the man is willing to take a DNA test. In the UK, yes, it is legal for the man to refuse the paternity or DNA test that comes next in the process listed above. However, refusal to take the DNA test will, in most cases, end with the man being legally declared the father of the children.
Legally, the courts cannot force the man to take the DNA test, but with undergoing such a test, he stands to lose nothing and it will help the case to progress.
If he is the father, he must pay this fee back, but if he is not the father as he claims, he will not pay for it. In some cases, this entire process of disputing paternity does not occur until after the maintenance calculation fee has been made.
If one of the parents refuses for the genetic sample to be taken from the child, the courts can enact the power to get this sample for the benefit of the case. A mature young person can also have the right to refuse to provide a genetic sample, however, the UK courts take the view that the truth is preferential in most cases. Backdated since the day of the paternity dispute, the mother should pay back any maintenance that she has received, however, she will not have to pay back any maintenance from before that date.
The court will decide this ultimate repayment fee. Whilst a DNA test cannot be forced on the man, if refusing the test results in the responsibility of parenthood, most will choose to take the DNA test and get definite proof. DNA test being conducted and the respondent, represented by Sri T. Niranjan Reddy, submitted himself to DNA test with his own free volition. DNA test proved respondent —father to be a biological father of the petitioner. Maintenance was granted from the date of petition on the basis of DNA Test.
In India DNA testing got legal validity in Property disputes, inheritance, maintenance, rape and many other issues. DNA is necessary to reach the finality and justness of the issue. It is however not clear whether DNA test can be used in cases governed by Sec.
For almost fifteen years thereafter Kamti Devi remained childless and on 4. The long period in between was marked by internecine legal battles in which the spouses engaged as against each other. Soon after the birth of the child it was sought to be recorded in the Register under the Births, Deaths and Marriages Registration Act. The husband filed a civil suit for a decree declaring that his is not the father of the child, as he had no access to the appellant Kamti Devi during the period when the child would have been begotten.
The trial court, on the basis of admitted fact that the parties are spouses of a valid marriage and that the marriage subsisted on the date of birth of the child, relied on the conclusive presumption mentioned in Section of the Act. The trial court further held that the husband failed to prove that he has no access to his wife Kamti Devi during the relevant period. Accordingly the suit was dismissed. But the first appellate court, after re-evaluating the entire evidence, found that the husband plaintiff succeeded in discharging the burden for rebutting the presumption by proving that he had no access to the mother of the child during a very long stretch of time covering the relevant period.
On the strength of the said finding the first appellate court allowed the appeal and decreed the suit declaring the plaintiff is not the father of the child Roshan Lal. The High Court refused to interfere with the aforesaid finding in the second appeal on the premise that "the question whether Roshan Lal ils the son of the plaintiff is a pure question of fact which calls for no interference by the Court in the second appeal under Section of the Code of Civil Procedure.
First is that the District Court went wrong in relying on the interested evidence of the plaintiff. Second is that the High Court failed in formulating the substantial question of law involved in this case as to whether the burden of husband-plaintiff to prove that he had no access to his wife is as heavy as the burden of prosecution in a criminal case to prove the guilt of the accused.
The result of a genuine DNA test is said to be scientifically accurate. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception.
Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.
Judgment of the Supreme Court in also highlighted the fact that there is no provision in Indian laws to force or compel people to undergo blood tests or any other type of DNA testing. The apex court held that DNA test is not to be directed as matter of routine and only in deserving cases such as direction can be given. The Court gave priority to social parentage over biological parentage and thereby rejected DNA evidence by observing that though the result of a genuine DNA test is said to be scientifically accurate it is not enough to escape from the conclusiveness of Section of the Evidence Act, A person can now be physically compelled to give a blood sample for DNA profiling in compliance with a Civil Court order in a paternity action.
Narayan Dutt Tiwari , has held that once a matrimonial or civil court exercises its inherent power to order a person to submit to a medical examination or it directs holding of a scientific, technical or expert investigation, which is resisted or refused by a party, the Court is entitled to enforce such direction and not simply take the refusal on record to draw an adverse inference therefrom.
The Court also settled the issue that such mandatory testing upon an unwilling person is not violative of the Right to Life or Privacy of a person under Article 21 of the Constitution though the power to direct a DNA test should be exercised after weighing all " pros and cons " and satisfying the " test of eminent need ".
A Congress leader N. Tiwari was locked in a paternity suit. A single-judge bench of the high court had on December 23 asked Defendant to undergo a DNA test on the paternity suit filed by Rohit Shekhar who claims to be his biological son born out of the leader's alleged relationship with his mother Ujjawala Sharma who is also a Congress activist The court had asked him to undergo the test saying that wider interest of a child of not being declared a bastard has to be kept in mind.
The politician then approached a division bench of the High Court which refused to grant him relief on the DNA test and also imposed a cost of Rs 25, Tiwari, who has held the posts of Chief Minister of undivided Uttar Pradesh and later Uttarakhand, had opposed the paternity suit filed by Shekhar. He was forced to resign as Governor in the midst of allegations of sexual misconduct, had countered the charges claiming that he never had any physical relationship with Ujjawala, who is also a Congress activist, and Shekhar was not entitled to seek a DNA test as a matter of right.
The Supreme Court has held that DNA test in a paternity suit cannot be ordered by courts in a routine manner but should be directed only in exceptional cases as it would otherwise be an invasion of a person's privacy. The apex court passed the judgement while setting aside an Orissa High Court order which had upheld the direction of the Orissa State Women's Commission for conduct of a DNA test to determine the paternity dispute of a couple.
The petitioner wife had appealed against the Calcutta High Court's direction that either she submit to letting her child undergo a DNA test, or accept the accusation of adultery which her husband had levelled against her. After four years of marriage, the husband had accused her of being ill-mannered, arrogant, extravagant in her tastes, disrespectful towards his mother, and of having an affair with a man who he claimed was the real father of the daughter born to the couple.
Quite significantly, and even the Supreme Court in its decision acknowledged this, the husband demanded the DNA test not to prove the child's paternity, but as a testament of his wife's "going astray".
He had filed for divorce and cited adultery as one of the principal grounds. Section of the Indian Evidence Act states that a child born to a married couple shall be presumed to be legitimate. This can of course be disproved, but the burden is on the husband to do so.
And the evidence in such a situation, though not as rigorous as that in criminal law, must be higher than that of mere weighing of possibilities. While ruling in a similar case last year, the Karnataka High Court had dismissed a husband's claim with a stinging rebuke - that a DNA test cannot be allowed as some modern day agni pariksha. In the present case, the court didn't have to do more than asking the husband to prove that it wasn't possible for him to have any physical relations with his wife for fathering a child.
Usually, in such cases, when the couple are no longer staying together, this is the standard adopted. But here the facts were different- the wife was staying with her parents after childbirth, and had gone back to her husband once she had recovered from the post-partum stress.
Instead, in a shocking leap of logic, the court ignored evident facts and thrust the burden on the wife. She had to agree to the DNA test. Of course, she wouldn't be compelled to do so, but her refusal would result in automatic validation of the husband's charges. But this error, although grave, is only a comparatively minor harm that this judgement causes.
By setting a precedent of allowing suspicious husbands to hold their wives to ransom, it indirectly contributes to the rising instances of domestic violence, many of which also end up in murder. Studies have conclusively proved that a particular kind of jealousy- suspicion of the wife or female partner's infidelity acts as a trigger for beatings, abuse, and killings. There is also a vocal, and justified demand for consigning the offence of adultery to the bin of obsolete, regressive laws.
In such circumstances, unfortunately, this judgement strengthens misogyny in a society already reeling from it. In view of the above quoted instances, today, the most debatable question which generates thoughts amongst jurists, judges, scientists, lawyers and academicians, irrespective of any legal system, is as to how the present value based system of justice requires to be changed or modified or re-oriented for the purposes of utilizing the advantages of modern scientific discoveries and technological advancements in the justice delivery system Conclusion The time for denial of admitting DNA evidence is over.
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