TMI Blog1993 (5) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... to the matrimonial home during Durga Pooja in the month of October, 1990. A female child was born on 3.1.91. She filed a petition under section 125 Cr. P.C. before the Learned Chief Judicial Magistrate, Alipore in Misc. Case No. 143 of 1991 both for herself and the child. By an order dated 14.8.91 which was passed ex-parte he awarded a sum of ₹ 300 per man sum to the mother and ₹ 200 to the child. Against that order, he moved a revision to the High Court. That revision is pending as 1837 of 199 1. Thereafter the petitioner filed a Crl. Misc. Case No. 143 of 1991 for blood group test of the second respondent and the child. In that proceeding the petitioner herein disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. According to him if that could be established he would not be liable to pay maintenance. That application was dismissed on two grounds: (i) there were other methods in the Evidence Act to disprove the paternity (ii) moreover it is settled law that medical test cannot be conclusive of paternity. Aggrieved by this order, a revision was preferred before the High Court. Dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her at that time. Failing the father's attempt, the mother's evidence had to be corroborated by facts such as blood test etc. Under the Act either party could ask for a blood test and either was entitled to refuse to take part, although only the mother can apply for maintenance. The Family Reforms Act, 1969 conferred powers on the court to direct taking blood test in civil proceedings in paternity cases. Courts were able to give directions for the use of the blood test and taking blood samples from the child, the mother and any person alleged to be the father. Since the passing of 1969 Act the general practice has been to use blood tests when paternity is in issue. However, it is to be stated the court cannot order a person to submit to tests but can draw adverse inferences from a refusal to do so. Now under the Fan-lily Reforms Act, 1987 in keeping with modern thinking on the continuing and shared responsibility of parenthood, 'parentage' rather than paternity has to be determined before the court. Fathers as well as mothers can apply for maintenance. Therefore contests can include mothers denial of paternity. This Act finally removed the legal aid for corroborati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exclusive) involvement of forensic serology in civil cases. The majority of disputed parentage cases involve disputed paternity, although an occasional disputed maternity, or baby mix-up case does arise, and can be solved using the tools of forensic serology described in this chapter. Blood typing has been used to help resolve paternity cases since the mid-1920's. According to Latters, there were 3,000 cases tested in Berlin in 1924, and Schiff and Boyd said that the first case went to court in Berlin in 1924. Ottenberg, in this country published paternity exclusion tables in 192 1, as did Dyke in England in 1922. It took somewhat longer to satisfy the courts, both in Europe and in country, that parentage exclusions based upon blood grouping were completely valid. Wiener said that he had obtained an exclusion in a paternity case in this country which reached the courts early in 1933. In January of 1934, Justice Steinbrink of the New York Supreme Court in Brooklyn ordered that blood tests be performed in a disputed paternity action, using a s precedent a decision by the Italian Supreme Court of Cassation, but his order was reversed upon appeal. Soon afterward, however, laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-access in connection with an issue of legitimacy arises for consideration. My attention has been drawn by learned counsel to page 69 of Taylor's Principles and Practice of Medical Jurisprudence, Volume 2, where it is stated thus : In Wilson v. Wilson, Lancet [1942] 1. 570, evidence was given that the husband's group was OM, that the wife's was BM and that the child's was ABN. The Court held that the husband was not the father of child, and granted a decree for nullity. It is also pointed out by learned counsel that in the text books on Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P. Moi, (8th Edition), at page 94, reference is made to a case decided by a Criminal Court at Mercare in June, 194 1, in which the paternity and maternity of the child being under dispute, the Court resorted to the results of the blood grouping test. That may be. But I am not in any event satisfied that if the parties are unwilling to offer their blood for a test of this kind this Court can force them to do so. The same view was taken by the Kerala High Court in Vasu v. Santha 1975 Kerala Law Times p. 533 as A special protection is given by the law to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala, AIR 1959 Madras 396, and the earlier decision of the same court in Venkateswarlu v. Subbayya AIR 1951 Madras 910. Such an adverse inference which has only a very little relevance here will not advance the appellants case to any extent. He has to prove that he had no opportunity to have any sexual intercourse with the 1st respondent at a time when these children could have been begotten. That is the only proof that is permitted under S. II 2 to dislodge the conclusive presumption enjoined by the Section. In Hargavind Soni v. Ramdulari AIR 1986 MP at 57 held as:- The blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by Courts as a circumstantial evidence. But no person can be compelled to give a sample of blood for blood grouping test against his will and no adverse inference can be drawn against him for this refusal. Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain invididual as a father of the child. However, it requires to be carefully noted no person can be compelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim is to ensure that he gets his rights. If in a case the court has reason to believe that the application for blood test is of a fishing nature or designed for some ulterior motive, it would be justified in not acceding to such a prayer. The above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to section 112 of the Evidence Act. This section is based on the well known maxim pater est quem nuptioe demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, any that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immoratility. It is a rebuttable presumption of law that a child born. during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderannce of evidence, and not by a mere balance of probab ..... 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