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Report No. 185

2. Blood tests

As regards blood groups, the 69th Report gives the following example in para 54.50. As a scientific principle, a child will inherit the blood group of one or other of his parents. If O is the blood group of the mother and A is that of the child, a person with blood group 'B' cannot be the father. But, if the blood of the male in question is also A, like the child's, it is not possible to say that the person is the father. This is the position in Europe and USA in the states also. (see para 54.56 of the 69th Report).

So far as blood tests are concerned, American statutes require that, where more than one expert is examined there must be total unanimity. As already stated, where the blood tests show on an analysis of blood groups, that the husband is not the father, such a result is today accepted as conclusive and that the husband is not the father. The exclusion test is definite but the inclusive test, is equivocal, as stated earlier. The Supreme Court, in Gautam Kundu v. State of W.B. AIR 1993 SC 2295 has laid down four conditions in the context of Section 112 before blood test can be ordered. They are as follows:

(1) that courts in India cannot order blood test as a 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 prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112;

(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 compelled to give sample of blood for analysis.

(That is why Section 23 of 1969 the English statute of 1969 permits the Court to draw an adverse inference in civil cases, if a party refuses to give blood).

The California Law & Evidence Code Section 621 as amended (quoted in Wigmore, 2000-2001 Suppl. Page 1278, para 2527 includes impotency and sterility also and reads as follows: (West Suppl. 1984)

"Section. 621: (a) Except as provided in sub-division (b), the issue of a wife cohabiting with the husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage;

(b) Notwithstanding the provision of subdivision (a), if the court finds that the conclusion of all experts, as disclosed by the evidence based upon blood tests performed pursuant to Uniform Act on Blood Tests to Determine Paternity are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.

(c) The notice of motion for blood tests under sub-division (b) may be raised by the husband not later than two years from the child's date of birth.

(d) The notice of motion for blood tests under sub division (b) may be raised by the mother of the child not later than two years from the child's date of birth if the child's biological father has filed an affidavit with the Court acknowledging paternity of the child.

(e) The provision of sub division (b) shall not apply to any case coming within the provisions of section 7005 of the Civil Code or to any case in which the wife, with the consent of the husband, conceived by means of a surgical procedure.

(f) The notice of motion for the blood test pursuant to sub division

(b) shall be supported by a declaration under oath submitted by the moving party stating the factual basis for placing the issue of paternity before the Court. This requirement shall not apply to any case pending before the Court on September 30, 1980.

(g) The provisions of sub division (b) shall not apply to any case which has reached final judgment of paternity on September 30, 1980".

Wigmore (Vol. IX, 1981 para 2527, pp 585-586) also refers to California Civil Code para 7004 (as amended in 1975) (It is not clear what is Section 7005 referred to in Section 621 quoted above). Section 7004 reads thus:

"Section. 7004: (a) A man is presumed to be the natural father of a child if he meets the conditions as set forth in Section 621 of the Evidence Code or in any of the following sub-divisions.-

(1) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after the decree of separation is entered by a Court.

(2) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and,

(i) If the attempted marriage could be declared invalid only by a Court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce; or

(ii) If the attempted marriage is invalid without a court order

(3) After the child's birth he and the natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and

(i) With his consent, he is named a child's father on the child's birth certificate, or

(ii) He is obliged to support the child under a written voluntary promise or by court order.

(4) He receives the child into his home and openly holds out the child as his natural child.

(b) Except as provided in Section 621 of the Evidence Code, a presumption under this section is a rebut presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise under this section which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child in another man."

Having regard to the above position so far as blood tests are concerned, we are of the view that blood group tests yield a result with certainty to say that a person is not the father, though they are not conclusive to say that a person is a father. In the current state of science and the position elsewhere in other countries, we are of the view that blood test analysis of the mother and the man (taken with their consent) and that of the child (taken with the court's permission) do not enable a Court to decide that a person is the father. We are also of the view that, if there are more than one tests conducted, the result must be unanimous.



Review of the Indian Evidence Act, 1872 Back




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