September 30, 2022

Blood group test as a medium to prove paternity

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 compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal.

Law as available in England

At the beginning of the twentieth century scientists established that human blood had certain characteristics which could be genetically transmitted. The first recognised system was ABO blood group. The blood group of a child is determined by the parents’ genetic make-up but the number of possibilities is such, that it is not possible to prove that certain individuals are the father on the basis of comparing blood groups.

By 1930s other immunological test became available. As a result, the possibility of establishing paternity increased. An attempt by way of statutory provision to make blood test compulsory in England failed in 1938.

However, in 1957 the Affiliation Proceedings Act was passed. Under that Act, it was assumed that a man was the father once a sexual relationship with the mother at the time of conception was proven unless he could show another man had intercourse with 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 Family 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 mother’s denial of paternity. This Act finally removed the legal aid for corroboration of mother’s statement of paternity.

B.R.B. v. J.B.

In B.R.B. v. J.B. [1968] 2 All England Reports 1023 applied this dictum and held as under: –

“The Country court judge will refer it to a High Court Judge as a matter suitable for ancillary relief, and the High Court Judge can order the blood test. Likewise, of course, a magistrate’s court has no power to order a blood test against the will of the parties. The magistrate can only do it by consent of those concerned, namely, the grown-ups and the mother on behalf of the child; but, nevertheless, if any of them does not consent, the magistrate can take that refusal into account adhere to the view which expressed in Re L. that (6)

“If an adult unreasonably refuses to have a blood test, or to allow a child to have one, I think that it is open to the court in any civil proceedings (no matter whether it be a paternity issue or an affiliation summons, or a custody proceedings) to take his refusal as evidence against him, and may draw an inference there from adverse to him. This is simple common sense.”

“The conclusion of the whole matter is that a judge of the High Court has power to order a blood test whenever it is in the best interests of the child. The judges can be trusted to exercise this discretion wisely. I would set no limit, condition or bounds to the way in which judges exercise their discretion. To object of the court always is to find out the truth. When scientific advances give us fresh means of ascertaining it, we should not hesitate to use those means whenever the occasion requires.”

Law in United States

As regard United States the law as stated in Forensic Sciences edited by Cyril H. Wecht is as under: –

“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 1921, 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 were passed in a number of states providing the courts with statutory authority to order blood testing in disputed paternity cases.

Paternity testing has developed somewhat more slowly in the United States than in certain of the European countries, but today the differences in the number of systems employed, and judicial acceptance of the results, are no longer that great. A number of authorities have recently reviewed the subject of paternity testing in some detail, and in some cases have summarized the results of large number of cases that they have investigated.

Walker points out that failure to exclude a man, even at the 95 percent level of paternity exclusion does not mean that the alleged father is proven to be biologic father, because absolute proof of paternity cannot be established by any known blood test available. Although this fact is well known and appreciated by workers it), the field of blood grouping and by attorneys active in this area, it is not generally understood by the lay public. However, blood group serology, using proven genetic marker systems, represents the most accurate scientific information concerning paternity and is so recognised in the United States, as well as in a number of countries abroad.”

Under Indian Law

In India there is no special statute governing this. Neither the Criminal Procedure Code nor the Evidence Act empowers the court to direct such a test to be made.

In 1951 Polavarapu Venkteswarlu, minor by guardian and mother Hanwnamma v. Polavarapu Subbayya in that case the application was preferred under section 151 of the Code of Civil Procedure invoking the inherent powers of the Court to direct a blood test. The learned judge was of the following view: –

“Section 151, Civil Procedure Code, has been introduced in to the Statute book to give effect to the inherent powers. of Courts as expounded by Woodroffe, J., in Hukum Chand Boid v. Kamalan and Singh. Such powers can only be exercised ex debito[1]justice and not on the mere invocation of parties or on the mere volition of courts. There is no procedure either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case.

It is said by Mr. Ramakrishna for the respondent before me that in England this sort of test is resorted to by Courts where the question of non-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, 1941, 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 status of legitimacy in India. The law is very strict regarding the type of the evidence which can be let in to rebut the presumption of legitimacy of a child. Even proof that the mother committed adultery with any number of men will not of itself suffice for proving the illegitimacy of the child. If she had access to her husband during the time the child could have been begotten the law will not countenance any attempt on the part of the husband to prove that the child is not actually his.

The presumption of law of legitimacy of a child will not be lightly repelled. It will not be allowed to be broken or shaken by a mere balance of probability. The evidence of non-access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.

The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case. These rigours are justified by considerations of public policy for there are a variety of reasons why a child’s status is not to be trifled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England to protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably not their father. But, the legislature alone can change the rigour of the law and not the court. The court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted.

There is an aspect of the matter also. Before a blood test of a person is ordered his consent is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether even a legislature can compel a blood test is doubtful. Here no consent is given by any of the respondents. It is also doubtful whether a guardian ad litem can give this consent.

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.”

In Raghunath v. Shardabai 1986 AIR Bombay 388, it was observed blood grouping test have their limitation, they cannot possibly establish paternity, they can only indicate its possibilities.

In Bhartiraj v. Sumesh Sachdeo & Ors., 1986 AIR Allahabad 2591 held as: –

“Discussing the evidentiary value of blood tests for determining paternity, Rayden on Divorce, (1983) Vol. 1) p. 1054 has this to say

“Medical Science is able to analyse the blood of individuals into definite groups: and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect the proves most valuable in determining paternity, that is, the exclusion aspect for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity.

When a man is not the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show. positively he is not the father, and in some cases the chance is even higher: between two giver men who have had sexual intercourse with. the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 80 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father.

The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the consideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do.

The court exercises protective jurisdiction on behalf of an infant. In my considered opinion it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The child cannot be allowed to suffer because of his incapacity; the 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.”

In Smt. Dukhtar Jahan v. Mohammed Faroog AIR 1987 SC 1049 this court held,

“Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basts of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.”

In Gautam kundu v. State of West Bengal, (1993), the court said,

“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 preponderance of evidence, and not by a mere balance of probabilities.”

“Access” and “non-access” mean the existence or non- existence of opportunities for sexual intercourse; it does not mean actual cohabitation.

Summarising the law

From the above discussion it emerges: –

(1) that courts in India cannot order blood test as matter of course;

(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong primafacie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.

Reference

Goutam Kundu vs State of West Bengal: 1993 AIR 2295, 1993 SCR (3) 917


[1] founded on recognition of a debt that, justice delivery system owes to a litigant to correct an error in a judicial dispensation.