ND Tiwari

New Delhi, April 26: Former Andhra Pradesh governor N.D. Tiwari today tried to wriggle out of the paternity case against him by attempting to turn a disadvantage into an advantage.

“I can’t be forced to admit to adultery,” his counsel A.D.N. Rao told the Supreme Court, where Tiwari has challenged a Delhi High Court summons to him.

The nub of the matter is that a paternity suit is a civil case. However, if Tiwari were to accept the charge, he would at the same time be admitting to adultery, a criminal offence.

Lawyers said this was a brilliant ploy, because the law cannot force anyone to incriminate themselves, that is, compel them to admit a criminal offence un- related to the case against them.

Tiwari had so far denied the paternity charge and questioned the suit, filed by Rohit Shekhar, who claims to be his (illegitimate) son, on the technical grounds of delay and court jurisdiction. But he had also admitted that Shekhar’s mother, who was married to another man when Shekhar was born, was his “paramour”.

Section 494 of the penal code says that whoever has sexual intercourse with a woman who is the wife of another man, without his consent, is guilty of adultery and can be jailed for up to five years. The woman, though, cannot be punished.

Lawyer Rao was arguing in the apex court for a stay on an April 7 high court order that gave Tiwari two options. One, explain in four weeks why he should not be subjected to a DNA test, or two, appear in the high court on May 10, the next date of hearing.

Tiwari, the first senior politician in the country to face a paternity suit, has so far been able to avoid appearing in court.

His lawyer also tried a second tack today, arguing that every child born during a marriage must be considered a legitimate child, that is, the offspring of the mother’s husband.

The Supreme Court bench, headed by Chief Justice of India K.G. Balakrishnan, refused to accept his contentions saying his appeal for a stay on the high court order would come up for hearing in “natural course”.

Given the backlog in the top court, this implies a waiting period of at least two months, whereas the next hearing in the high court is just two weeks away.

The high court has also asked Tiwari to give specific responses to each of 50- odd photographs furnished by Shekhar as evidence of the four-time Congress chief minister’s paternity.

The high court had last year thrown out the paternity suit on the ground of delay but a division bench later ruled that the case was not time-barred and sent it to a single-judge bench to decide.