‘Rarest of rare’: Rajasthan High Court orders DNA test after 93-year-old woman denies ‘daughter’ amid property row

Property dispute triggered identity question

• The dispute arose from a civil suit filed by Bhauri Devi, who challenged a registered will dated April 10, 2014, allegedly executed by her late father, Shri Badri, in favour of one Mahendra Kumar.
• According to the petitioner, the agricultural land in question was ancestral property.
• Part of the land had been acquired under the Rajasthan State Industrial Development & Investment Corporation (RIICO) Central Spine Scheme.
• Her father had received eight plots in lieu of the acquired land.
• Being ancestral property, she and her mother had rights over it.
• Shri Badri passed away on January 14, 2017, and the petitioner claimed that she became aware of the will on February 17, 2017.
• Follwoing this, she approached the civil court, seeking declaration of the will as null and void, and claiming a half share in the property.

Mother denies daughter

• The case took a dramatic turn when Bila Devi, aged about 93 years and the widow of Shri Badri, denied that the petitioner was her daughter.
• The trial court framed a specific issue – whether the plaintiff is the daughter of the late Shri Badri.
• To conclusively establish her claim, Bhauri Devi filed an application under Order 26 Rule 10A (commission for scientific investigation) of the Civil Procedure Code (CPC), seeking DNA testing of herself and her alleged mother.
• However, the additional civil judge rejected the application on February 24, 2022, citing privacy concerns and alleged refusal by the defendants to undergo DNA testing.

Rare maternity dispute, says court

• This court is astonished by the fact that a mother denying a child to be hers is a “rarest of rare” case.
• In society, it is usually the male who denies the paternity of a child on many grounds, including the alleged infidelity of the wife.
• In the present case, it is the female who is denying a child to be hers.
• Thus, the fact of paternity is not under challenge in the present petition but it is the maternity of the child that is disputed.
• The legislative intent never envisaged a situation where a female would deny that a child was not born from her womb.
• The question before this court is, how a person born to a female is to prove that the woman is, in fact, the natural mother.
• In the modern world, where everything has become materialistic, it is easy to admit or deny the parenthood of a child.
• It is extremely difficult for a child to prove that a particular person is his or her parent.
• With significant advancements in science, not only paternity but also maternity can now be conclusively determined through DNA testing.
• Most of the judgments relied upon by the counsel for the parties are based on the issue of paternity.
• A person cannot be forced to undergo a paternity or maternity test, but a direction can be issued to a person to undergo a DNA test.
• If anyone does not appear for the DNA test or refuses to undergo the test, then provisions of the Indian Evidence Act of 1872, corresponding to provisions under Bharatiya Sakshya Adhiniyam, 2023, shall apply.

Decision: Trial court order quashed

• Allowing the writ petition, the high court quashed the trial court’s order dated February 24, 2022.
• It directed the mother, Bila Devi, to undergo DNA testing.
• The DNA sample is to be matched with that of the petitioner.
• If she refuses, the trial court may draw adverse inference according to law.
• All pending applications were disposed of.

No statutory presumption for denial of maternity

• The court examined Section 112 of the Indian Evidence Act, 1872, and its successor, Section 116 of the Bharatiya Sakshya Adhiniyam, 2023.
• Both provisions create a presumption that a child born during the subsistence of a marriage is legitimate, focusing primarily on paternity.
• However, the court observed, “The legislative intent never envisaged a situation where a female would deny that a child was not born from her womb.”
• Thus, in the absence of a statutory presumption covering such a scenario, scientific evidence becomes crucial.

Privacy versus truth: HC cites Supreme Court

Addressing concerns about the invasion of privacy, the court relied on landmark Supreme Court rulings:

• Dipanwita Roy vs Ronobroto Roy
• Nandlal Wasudeo Badwaik vs Lata Nandlal Badwaik
• Narayan Dutt Tiwari vs Rohit Shekhar

No DNA test for alleged son

• The petitioner had also sought DNA testing of respondent number 3, Ramswaroop, who claims to be the son of Bila Devi’s deceased husband, Shri Badri.
• However, the high court declined that request, observing that it is for him to independently prove his claim, and the immediate controversy concerned only the petitioner Bhauri Devi’s maternity.