Tuesday, December 6, 2011

DNA test last resort to prove paternity, rules Bombay HC

A DNA test cannot be the first choice to prove a paternity claim in court; it can be the last resort when all other evidence has failed, the Bombay high court has ruled.
Justice R M Savant struck down an order of a trial court, which had directed a man and his stepsisters to undergo a DNA test to prove that they had the same biological father. The trial court had passed the order in a property dispute case.
“The DNA test could be ordered if the trial court comes to the conclusion that the evidence on record is insufficient to prove the relationship between the parties,” said Justice Savant. “In the instant case, without the said course of action being followed, the DNA test has been ordered straightaway.”
Unlike a simple paternity test, which gives a conclusive result, sibling-ship tests to prove a common parent is difficult. Based on the type of genetic material inherited by each sibling, a sibling-ship index is determined: less than 1 indicates there is no relationship between the two and greater than 1 indicates a probability that the two individuals tested may be related to each other.
The case involves an application filed in 2009 by Kolhapur resident Yusuf Kulkarni, seeking division of property owned by Bashir Kulkarni, who he claimed was his father. Yusuf moved court after his stepsisters sold the property to a someone else.
According to Yusuf, he was Bashir’s son from his first wife. Bashir’s second wife and her five daughters opposed the plea and raised doubts on his paternity claim. Yusuf then sought a DNA test, of himself and that of his stepsisters. The trial court allowed the plea and ordered Yusuf and his stepsisters to undergo the DNA test to verify the claims.
One of the sisters moved the high court, challenging the trial court’s order. The petition argued that DNA test could not have been ordered as a matter of course. Subsequently, Yusuf’s lawyer pointed to affidavits filed by Bashir’s second wife and two of the stepsisters, in which they had admitted that he was indeed the son of the first wife.

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