Courtesy of Rohit Shekhar and rediff.com Senior
Congress leader N.D. Tiwari, wearing a white cap, with his biological
son Rohit Shekhar, fourth from right, on the former’s birthday.
In 2007, a 28-year-old man was propelled from obscurity to prominence
when he turned to the Delhi High Court to seek a public acknowledgement
of paternity from a senior Congress Party leader, N.D. Tiwari. Rohit
Shekhar, who said that he was the result of an affair between his mother
and Mr. Tiwari, spent five years trying to force the politician to take
a DNA test, taking his case all the way to the Supreme Court, which
ruled in Mr. Shekhar’s favor last year.
The high-profile nature of the case contributed to the public’s
growing awareness of the role of DNA in establishing biological ties,
and these days, paternity tests are much more commonplace, with private
labs offering home testing kits for 10,000 rupees ($160) or less, with
no need for a judge’s permission. A person can swab the inside of a
child’s mouth at home, send the samples from the adult and child back to
the lab and receive the results within two weeks.
Ritu, the director of DNA Center India in Hyderabad, said her company
has seen a clear increase in interest in its DNA paternity tests in
recent years. “Initially, we could get around 10 calls a month, but over
the last two years or so this has increased to around 40,” said the
director, who goes by one name. Not every call leads to an order, she
said, but “those who do avail of our services tend to opt for the ‘peace
of mind’ home testing kit.”
People have a variety of reasons for ordering paternity tests, but
some DNA testing centers say that many clients are doubting fathers or
men who are seeking to end a marriage, and it’s this group that worries
some advocates of women’s rights. Veena Gowda, a lawyer in Mumbai who
has been practicing for over 15 years, contends that these men are using
the tests to deprive women of their right to alimony or child support
by accusing the women of adultery, which is illegal in India.
“It’s almost as if science is always twisted to suit patriarchal
norms,” Ms. Gowda said. “Putting a child through paternity tests without
court orders only reinforces the thought that marriage is nothing more
than controlling a woman and her womb.”
In the United States, the demand for paternity tests is fueled in
part by the Personal Responsibility and Work Opportunity Act of 1996,
which gave child-support agencies the authority to order DNA tests
without prior judicial consent. State-based child support enforcement
agencies remain some of the biggest clients for DNA paternity tests.
However, the technology revealed its double edge when men began using it
not just to establish paternity but to distance themselves from the
burden of child support once they could prove the absence of biological
ties.
Indian courts have been circumspect in ordering paternity tests,
especially in the death throes of a marriage. Currently, the law places
less weight on DNA ties and instead establishes the marital presumption
of paternity, which sees the husband as the father of any children
conceived during the marriage. Children born during a legal union or
within 280 days after a marriage has dissolved are considered the
legitimate offspring of the husband, unless the husband can prove that
he had no access to his wife during the time the child would have been
conceived.
Even when DNA evidence proves a biological tie between a father and
child, the courts will still continue to favor longstanding familial
relationships over genetics. In the Tiwari case, for example, the DNA
test showed that the Congress leader was indeed Mr. Shekhar’s biological
father, but the law still considers B.P. Sharma, who was married to Mr.
Shektar’s mother when Mr. Shektar was born, as the legitimate father.
(Mr. Shektar’s legal battle continues as Mr. Tiwari has refused to
accept the results of the DNA test and declined to participate in the
court mediation process.)
Women are generally entitled to spousal support after a divorce, but a
paternity test that shows no biological connection to a child can be
used by a man to get an exemption from paying alimony and child support.
However, lawyers say that courts have on occasion ordered a
nonbiological father to offer some financial support to prevent the
child from living in poverty and to minimize psychological damage.
The courts have been reluctant to order paternity tests even when the
petitioner is the mother. A few years ago, a woman from Orissa
approached the Orissa State Women’s Commission asking that a paternity
test be conducted after her estranged husband claimed he was not the
father of her child. The commission granted permission, and the decision
was upheld by the Orissa High Court. The husband challenged the
decision in the Supreme Court, arguing that the test was an invasion of
his privacy and that the divorce had not been finalized.
In 2010, the Supreme Court ruled that a paternity test to determine
the identity of a child especially during matrimonial disputes should
not be done in a routine manner because it infringes on the right to
privacy and may have a devastating effect on the child. “Sometimes the
result of such scientific test may bastardize an innocent child even
though his mother and her spouse were living together during the time of
conception,” the judges said in their ruling.
Currently, DNA home testing kits are not considered admissible in
court because there is no verifiable chain of custody. A court-ordered
paternity test has to be conducted in a government-certified forensic
center with a chain of custody to ensure that the evidence has not been
tampered with.
Private labs do offer more expensive DNA tests that follow a
documented chain of custody, which can be presented as evidence in
court. Ms. Gouda, who has challenged the legality of such tests in court
cases, finds them unethical.
“The authority is with the courts to determine whether a paternity
test should be ordered. The principal of the law is to protect the
child,” she said.
Women’s rights activists are concerned that as cohabitation without
marriage and divorce become more common as Indian society changes, the
demand for paternity testing will rise, which they say would ultimately
harm the children involved if the courts indiscriminately order DNA
tests.
Kanti Sathe, who has been practicing family law in Mumbai for 25
years, predicted that this decade will see more people seeking paternity
tests. She said she doesn’t oppose paternity testing in all cases – in
fact, such tests could help a child with unmarried parents receive
financial support from the father. “Children are entitled to financial
support and inheritance from their biological father. What we can count
on, and what is always required is judicial discretion.
“What’s being played out in courts is the conflict between
encroaching on an individual’s right to privacy and the rights of a
child,” said Ms. Sathe.
She recalled one of her recent cases, in which the couple was seeking
a divorce, and the husband, unwilling to pay child support, claimed
that he was not the father of their child. The matter was resolved
outside the court
when he backtracked from taking a paternity
test. “He accepted that the child was his, and a settlement was reached.
Imagine the damage it would have inflicted on the child if our courts
insisted on paternity tests for every case,” said Ms. Sathe.
DNA home tests also come with legal pitfalls for the labs themselves.
Ravi Kiran Reddy, director of DNA Labs India in Hyderabad, is being
sued by the wife of a client who had recently approached the lab for a
home paternity test. The test found that there was a 99.9 percent chance
that the client was not the father of the child, as he was led to
believe. However, the mother is now challenging the result in court and
blaming the biotechnology company for tarnishing her reputation, said
Mr. Reddy.
“It’s not worth the trouble, really,” he said. “The DNA sequencing
machines we use cost crores [tens of millions] of rupees, and
genetically testing for parenthood does not even cover the cost of
running the laboratory or maintaining the equipment.” The bulk of the
forensic center’s work comes from clients asking for their DNA to be
sequenced for health reasons and those who need to establish familial
ties either for immigration or for an infant born via a gestational
surrogate.
This is the sort of legal complication that will occur repeatedly if
men are allowed to use these tests to accuse their wives of infidelity,
women’s rights advocates say.
“If home testing kits were legally admissible, every person would be
under the scanner, every woman be suspect of cheating, and every child’s
paternity questioned,” said Ms. Sathe.
Anjali Thomas is a recent graduate of the Columbia University
Graduate School of Journalism. Ms. Thomas has worked with the Times of
India and Daily News and Analysis in Mumbai.
