RAJBIR KAUR Vs. SUKHWINDER SINGH

JUDGEMENT

(1.) (ORAL) Present petition is filed challenging the order dated 7.10.2008, 10.10.2008 and 24.4.2009, whereby DNA Test was directed to be done on Sukhwinder Singh-respondent-husband as well as on Manjinder Singh to find out the paternity of Manjinder Singh, son of parties.

(2.) The sole question involved in this case is as to whether DNA Test can be directed to be done on the minor to find out the paternity to prove the adultery on the part of the wife. The Hon?ble Apex Court in the matter of Kanti Devi and another v. Poshi Ram reported in 2001 (5) S.C.C. 311 in paragraph No.1 has observed as under:- ?11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. 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. 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 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.?

(3.) Learned Single Judge of this Court in the matter of Kuldeep Singh v. Joginder Kaur and another reported in 2006 (4) R.C.R. (Civil) 572 in paragraph No.4 has observed as under:-