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IN THE NAME OF THE FATHER
Whose genes?: Narain Dutt Tiwari (above) and Imran Khan have both had paternity suits filed against them

Rohit Shekhar, a 29-year-old Delhi-based lawyer, recently created a stir by filing a paternity suit against veteran Congress leader and Andhra Pradesh Governor Narain Dutt Tiwari. Though Tiwari denied the allegation and refused to undergo a DNA test, he acknowledged his association with Rohit’s mother Ujjala Sharma who was married to one B. P. Sharma at that time. In his petition filed before the Delhi High Court, Rohit claimed that he came to know about his natural father when he was around 12 years old and, since turning 18, has repeatedly sought and been denied his “status” as Tiwari’s son.

Rohit’s allegation may or may not be true, but the case has turned the spotlight on the issue of disputed parentage. Once thought to be the preserve of celebrities in the West — British actress Elizabeth Hurley filed a paternity suit against US millionaire Stephen Bing — many such cases are now landing up in Indian courts, say lawyers. “Most paternity suits are filed to establish financial or moral responsibility on the part of one or both parents. Mothers often file them to legally establish the identity of the man who fathered the child and sue for child support and other benefits. Fathers file them to gain visitation rights, or settle a contentious issue,” says Bharati Mutsuddi, lawyer and member of the West Bengal Commission for Women.

But there is no specific law in India that governs paternity suits. A person can file a petition under the Indian Evidence Act or the Criminal Procedure Code, asking the court either to order a DNA test or fix responsibility for parentage.

“The initial onus lies with the person who files the suit. He or she has to explain the reason for filing the suit and submit supporting documents, if any, such as the birth certificate or a copy of the school records to substantiate the claim. The court may study the circumstances and draw its own conclusion. It may or may not order a DNA test in such cases,” says senior Supreme Court lawyer Tapendra Narayan Ray Chowdhury.

“There is, however, a time bar on filing such suits,” points out Calcutta High court lawyer Joymalya Bagchi. “The Limitation Act, 1963, states that either of the parents has to file such suits within three years of the birth of the child. Where a child files such a suit, he has to do it within three years of turning 18,” he says.

Tiwari has, in fact, challenged the petitioner on the ground of “limitation”. His lawyers say that Rohit should have filed the suit within three years of turning 18. They also argue that since Rohit was born while his mother was married to B.P. Sharma, and since under Indian law a child born to a married woman is presumed to be the legitimate offspring of the husband, Rohit’s suit does not have a leg to stand on.

The courts could, of course, order Tiwari to undergo a DNA test. However, as Bagchi points out, “Neither the Criminal Procedure Code nor the Evidence Act empowers the court to force such tests on a person.”

Interestingly, Indian law does not consider a DNA test conclusive proof of paternity or otherwise and often seeks supporting evidence. “Even though DNA tests give almost 90 per cent correct results, there is a strong element of probability in it. This is why courts do not accept it as conclusive proof,” says C.N. Bhattacharya, director, Central Institute of Forensic Sciences, Calcutta.

What happens when a person refuses to undergo a DNA test ordered by the court? The court can take his refusal as evidence against him, says Ray Chowdhury. “Section 114 (g) of the Indian Evidence Act says, ‘The court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it,” he explains.

A US court took a similar view in the famous paternity suit involving Pakistani cricketer Imran Khan and his longtime American girlfriend Sita White. White had wanted Khan to undertake a DNA test to find out if he was the father of her daughter Tyrian. But Khan refused to submit himself to the test. Taking adverse inference from Khan’s refusal to undergo the test, the court ruled in 1997 that he was indeed the father of White’s 12-year-old daughter.

Experts point out that the lack of a special law that deals with paternity suits and DNA tests will increasingly be felt as more and more such cases begin to hit the courts. “Unlike in the West, there is no special statute governing such tests in India,” says Bagchi.

In the UK, for instance, the laws pertaining to a paternity suit are very strict, says Vijay S.T. Shankardass, barrister and senior counsel. “In Britain, the laws have evolved with the vigorous participation of the legislature. There are a plethora of statutes that deal with this subject and there are strict rules under which paternity tests are carried out. Once paternity is established, the court may make provisions for the protection and maintenance of the child,” he says.

There is, of course, another type of paternity suit — one where the father wants to establish whether or not the child is his own. In case a dispute arises over the legitimacy of a child born during marriage, the court takes regard to Section 112 of the Evidence Act. This section is based on the maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). “A person questioning the legitimacy of his child has to prove that he had complete non-access to his wife in order to dispel the presumption arising under Section 112 of the Indian Evidence Act,” says Bagchi.

Experts point out that the fact that a husband is presumed to be the father of the child born in wedlock unless it can be proven that he had no access to his wife whatsoever, is somewhat out of sync with the times. “The law on paternity has been pretty static in India,” says Shankardass.

As Indian society becomes more open, an increasing number of paternity suits will find their way into courts. Will our laws be adequate to deal with them? Time, as they say, will tell.

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