The legal tussle concerning the ancestral rights of Narayan Dutt Tiwari’s biological son Rohit Shekhar is set to repeat itself with Mulayam Singh and his second son Prateek Yadav in the time to come. The Indian law only considers the social father as the lawful father. It does not accredit the biological father. Therefore, the court’s wish to conduct Narayan Dutt Tiwari’s DNA test has created a controversy. The Constitution Bench has to come clear of the controversy and lawfully support either the social or biological claim. Eminent jurist, forensic science expert, social activist and senior IPS officer Dr G.K. Goswami has raised such technical and legal questions, which has brought the entire judicial system of the country into question.
In the infamous case of Rohit Shekhar Vs Narayan Dutt Tiwari, Rohit had filed a petition claiming Narayan Dutt Tiwari was his father, demanding a DNA test for confirmation of his claim. Rohit Shekhar’s mother Ujjwala Sharma was married to B.P. Sharma when Rohit was born in 1979. They got divorced in the year 2006. The court, reflecting judicial activism, conducted a DNA tested of Narayan Dutt Tiwari and even proved him to be the biological father of Rohit Shekhar. However, the court couldn’t declare Narayan Dutt Tiwari the lawful father of Rohit Shekhar. This is a strange fact that people should know.
People thought as Naranyan Dutt Tiwari was proven to be Rohit’s biological father, he was also declared to be the lawful father and that Rahul received his social and lawful rights as his son. No, this is not what happened. All that DNA test actually did was disintegration of a woman’s integrity and confirming to Rohit that not B.P. Sharma, but Narayan Dutt Tiwari is his biological father. Nothing more happened because lawfully, Rohit is still B.P. Sharma’s son. From a different perspective, the court, ignoring the paternity laws, forced Narayan Dutt Tiwari to take the DNA test and left Rohit Shekhar hanging in the middle of society and law.
Dr. G.K. Goswami says that there is only one provision (i.e. Section 112) for determination of paternity in the Indian Evidence Act (1872). The section says, “The fact that any 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, the mother remaining unmarried, shall be 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.” However, real life reveals that in case of extramarital affairs or sperm donation, the biological father and social father could be different people. In these times even single men and women are giving birth assisted technologies. A single parent can also adopt a child. In these cases, determining the parent has become an inconvenient subject. Enforcing archaic laws on the dynamically Changing society has caused some difficulties for the court of law.
Actually, Rohit Shekhar Vs Narayan Dutt Tiwari case has given a renewed blow to the question whether a child has the right to know their biological father or not? But this right affects the mother’s sexual privacy. The Child Rights Convention is also keeping their mum on the issue. Back in 2014, the Supreme Court in Nandlal Vasudev Mavalik v. Lata Vasudev case proposed that after the invention of modern technology such as DNA test, the paternal determination should be based on the truth not estimated outlines of the old laws. Everyone believes that victory of truth is the proof of justice. But the question remains unanswered that why does a court fail to avail a child his ancestral rights despite finding out the truth? Why does the highest court leave justice in the balance?
In the 2014 case of Deepanvita Roy vs. Ronobroto Roy, the Supreme Court had granted a divorce based on the results of a DNA test proving the child to be born of an extramarital affair. Now the Court is not only recognizing the paternity determination on the basis of DNA test but also resolving property disputes through the provisions of section 112. The country’s paternity law has stuck in strange illegal mess and even the courts allowing the DNA test have no legal answers to it. Dr. Goswami believes in this changing society and scientific era, there is a need to redefine a child’s paternity determination.
Dr. Goswami says that the impact of scientific and technological advances on the law is well-known. Test tube babies in 1978 and DNA fingerprint in 1986 have profoundly influenced the ancestral right of children. Scientific miracles like assisted reproduction technology and Surrogacy have brought smiles on millions of faces who were unable to reproduce. The word Surrogacy literally means, substitute. That is conceiving a child from someone else’s sperm, egg or womb. This method created the possibility of more than two parents of a child, which created further difficult in the determination of parents. The discovery of DNA test has added another it a new dimension of complexity.
In the 1990s, there was a flood of petitions in the court from husbands seeking paternity determining of children through DNA under suspicion on their spouses. In the Gautam Kundu Vs West Bengal Government case (1993), the Supreme Court controlled the situation by issuing five instructions. However, as time passed courts themselves disregarded the instructions of the Supreme Court. The DNA test of Narayan Dutt Tiwari is also a violation of the Supreme Court’s instructions.
Issuing five clear guidelines in the Gautam Kundu Vs West Bengal Government case, the Supreme Court said, (1) Courts is India cannot order DNA test as a matter of course. (2) Wherever applications are made for DNA test in order to have roving inquiry, the prayer cannot be entertained. (3)Section 112 of the Evidence Act debars evidence except in cases of non-access for disproving the presumption of legitimacy and paternity. (4) The Court must carefully examine as to what would be the consequence of ordering the DNA test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No person can be compelled to give sample of blood for analysis and no adverse inferences can he drawn against a person on account of such refusal. Narayan Dutt Tiwari’s case is an accurate example of how these Supreme Court guidelines have been violated. Despite Narayan Dutt Tiwari’s refusal and plea, the court pressurized him to take the test. The court even told to forcibly draw his blood for the DNA test.
DNA investigation confirmed the biological father of Rohit Shekhar, but it also disintegration Ujjwala Sharma’s sexuality and couldn’t dissolute the legitimacy of Rohit Shekhar’s biological father. Well, there are many more examples, in which the courts issued their order in violation of the top court’s guidelines. The courts force DNA test on men, but don’t even ask the women. The courts are themselves gender bias in this regard.
Dr. G.K. Goswami says that the child has the right to know about their parents, who gave birth to them, but availing this information must not affect the prosperity of the society or the entire system will be left in ruins. The right to know about the person giving birth to you is essential for personality development and it is also the person’s right to know, but they should also understand that the right to know about parenthood is a complex legal concept. Meaning: relations and reproduction are respectively overseen by civil law.
In order to keep the hereditary purity intact, the contributions of a third party in reproduction is prohibited under the law. This is the reason that unlike the lawfully married couple, the child born with the help of a third party is often called illegal. This is also the social fear that compels unmarried mothers to leave their infant children. These children are illegitimate in the eyes of society and law, while the notable philosopher George Bernard Shaw says that a child cannot be illegitimate, although the relationship of the parents can be.
Surrogacy will bring havoc to the society
Knowing the distinguished paternity laws in India, Surrogacy is running widespread in the country. Sterile parents are taking donated sperms and renting wombs to bear babies. Lakhs of babies are born every year in the country who have different biological and legal fathers. If these children were to grow up and have to take DNA tests for ancestral rights, you can imagine what kind of mentality they will develop and where that might lead them. India is a country of chaos, therefore all businesses here are running anarchically. Now be it the capital of the country, Delhi or the capital of Uttar Pradesh, Lucknow. Be it the National Capital region adjoining UP or Haryana, ‘fertility tourism’ is flourishing everywhere. These areas are harbouring countless IVF centers.
Surrogate mothers are available in India at much cheaper rates as compared to Europe and America. India is also a better option because of the restriction on test tube babies and surrogacy in the Western countries. Cities like Delhi, Noida, Ghaziabad, Gurgaon, Meerut, Kanpur, Lucknow along with Mumbai, Rajasthan, Madhya Pradesh, Chhattisgarh, Bangalore, Gujarat, Hyderabad and Kolkata are coming up as the hub for IVF centers. Delhi itself has numerous IVF centers, and the number of illegal surrogacy clinics is unfathomable.
It is illegal because doctors take away all the money and leave little to comparably nothing for the surrogate mothers. Poor women are helplessly joining this business. Poor women find surrogacy better than prostitution. The doctors are taking advantage of these poor women’s misery. More clinics more business. Doctors also arrange the surrogate mother to carry the baby.
Doctor takes contract for the surrogacy on a hefty amount. For many doctors in Lucknow, their surrogacy business is their main source of income. The doctors and their people take care of everything from paying the surrogate to delivery of the child. They don’t let the client get directly in touch with the surrogate mothers. Only one person from the receiving family can see the surrogate mother, that too in the doctor’s supervision. After getting the baby the customers can’t even see the even see the surrogate mothers. They are particular told not to. The surrogate mother get an approximate sum of one lakh to one and a half lakh to breed the baby in their wombs for 9 months, doctors keep the rest of the money.
For foreigners, this is a beneficial deal, that’s why people from West European countries and South Asian countries, especially Japan, come to India for surrogacy. Experts say that this has grown into an annual business of Rs. 25 billion. The main reason behind such huge inflow for surrogacy in India is that it’s cheap and effective. As of today, there are more than two lakh sperm banks surrogacy clinics and IVF clinics in the country. There is no law to control surrogacy in India.
In view of the absence of law, the Indian Council of Medical Research (ICMR) in 2005 had issued guidelines for certification, inspection and control of RT clinics in India. However, no one follows them and hence the business of exploiting and extorting surrogate mothers is running wild in the country. The surrogacy business is flourishing in the capital of Uttar Pradesh, Lucknow. Brokers are scamming poor women in hospitals, nursing homes and clinics by offering money.
Recently, a woman from Sitapur, troubled by the inhuman attitude of the hospitals and surrogacy brokers recently exposed a surrogacy corp. The woman complained in a police station that a nursing home in the Telibag area runs an illegal surrogacy business and she herself was associated with them. She told that she was promised a pay of over 2lakh rupees for the process however, after the pregnancy the hospital authorities had badly beaten the surrogate woman and her husband to recover the money spent on her treatment during the pregnancy. Despite the grueling exploitation of poor women in the business, around 15 to 20 lakh children are being born through surrogacy in the country every year.
The rich and foreigners are renting the wombs of poor Indian women to bear babies for them. The rate of receiving a child through surrogacy is also different. These rates go up to 50 lakhs in star hospitals with modern facilities. The same goes as much as Rs 10 to 15 lakh in general centers and hospitals, while the illegal centers and surrogate facilities decide the rate depending on the customer’s financial status. Many call centers are also engaged in this work, they provide customers with information on local surrogate facilities, doctors and even surrogate mothers to their convenience in UP, Delhi, Mumbai etc.
The surrogacy business is also expanding in the Indo-Nepal border area. Poor women are opting this business falling victim to the atrocities of these brokers. Nepal’s capital, Kathmandu, Nepalganj, Pokhara, Birganj and Bihar’s Raxaul, Araria, and Kishanganj have become the center of this business. Women from Delhi, Mumbai, Hyderabad and Karnataka also come here to donate ovum (egg). The ovum is then frozen in the test tube centers of Nepalganj and Pokhara. After this, Nepalese women are impregnated with them using the IVF technology. Two women caught in the Rupabheda area of Indo-Nepal border revealed to the Sashastra Seema Bal (SSB).
This also revealed how the doctors in Nepal and Delhi are making crores of rupees through surrogacy. The women revealed in the inquiry, that a doctor in Delhi sends women here to donate their ovum. This network is being run in association with some doctors of Pokhara. The detained women told that they donated ovum at the Nepalganj center. They also said that they are also exporting the ova of Indian women to China, Japan and some other countries making a lot of money in the process. Intelligence agencies also say that women are being kidnapped to surrogate babies. The death of 30-year-old Gujarat based women Prelima Vaghela was also a matter of discussion.
Vaghela was not fit bear a child, but she was forced to do it for money. She died during the delivery of child. The investigation in Vaghela’s death revealed that the brokers in this business provide children to foreign customers within three months. The brokers have collaboration with the doctors. These doctors even put more than one embryo in the womb of these surrogates and deliver multiple kids at the same time and then sell these kids to customers.
Union Minister of State for Health, Anupriya Patel has officially acknowledged that the illegal occupation of surrogacy has become a ‘two billion dollars’ business in the country. The Union Minister also admitted that this business has become a means to exploit the poor and unfortunate women and they have become ‘child-bearing factories’. She said that surrogacy should be the last option.
The only provision for paternity determination under Indian Evidence Act-1872 is under the section 112 of the Indian constitution. The section says, “The fact that any 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, the mother remaining unmarried, shall be 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.”
-Dr. GK Goswami, Celebrated Jurist, Forensic science specialist and senior IPS Offier
…but ND Tiwari is not Rohit’s legal father
Narayan Dutt Tiwari cannot be proven the legal father of Rohit Shekhar Despite the fact that he is his biological father, thanks to the DNA test. BP Sharma will remain Rohit’s legal father. After Narayan Dutt Tiwari was proved to be the biological father of Rohit through the DNA test report on July 27, 2012, Rohit’s mother Ujjwala Sharma married Narayan Dutt Tiwari in May 2014.
Regardless, Rohit did not become the legal son of ND Tiwari, because at the time of his birth, Ujjwala was still married to BP Sharma. Both of them were married in 1963, Rohit was born in 1979 and they divorced in 2006. In the year 2007, Rohit Shekhar had filed a petition in the court through the civil suit for official confirmation of his biological father. In 2010, the Delhi High Court recognized Rohit Shekhar’s curiosity as his legal right and ordered the DNA test of Narayan Dutt Tiwari.
On ND Tiwari’s objection, the court issued an order to draw his blood regardless of his will for DNA test and even made the results of the DNA test public. The Supreme Court guidelines issued in the Gautam Kundu Vs West Bengal government case were entirely ignored. Although, it officially confirmed that ND Tiwari was indeed Rohit Shekhar’s biological father, but the legal question remained intact. Did Rohit Shekhar get his Narayan Dutt Tiwari’s name as his legal father? Did Rohit get his ancestral rights? The answer to this question is ‘no’ and the court in unable to answer this question.
School ID cards to have DNA chips
The awareness of the right to know the identity of biological father is growing so strong in the society that people are now thinking about mandating a DNA test to match the father and their son’s DNA as soon as the child is born. After this, a procedure will also be implemented to making DNA chip-identity cards for children.
An official of the Ministry of Women and Child Welfare said that the DNA test of newborn baby is easy. On questions about the implementation of DNA-chip embedded Identity cards, the officer said that the DNA-chip will have the name of the parents, permanent address along with date and place of the birth embedded into it. This identification of the children will be useful in determining paternity rights as well as simplifying the process of future needs such as passports and voter identity cards.
This concept is under consideration. The number of DNA tests for verification of the father is continuously increasing all over the country, be the the big cities or cities like Noida, Ghaziabad, Agra, Lucknow, Chandigarh and Gurgaon. Paternity centers are opening up fast in these cities to verify the child’s biological fathers. People are sending their and their children’s blood-samples to the laboratories of Delhi, Hyderabad, Pune and Ahmedabad through doctors.
Around 10-15 cases of paternity tests are coming in every month in the Manjhol city of UP. The test requires ten thousand rupee as fee and 3 ml of blood for the test, which comes back in a week. Any center affiliated to the National Accreditation Board of Hospital (NBH) can take blood samples for DNA testing. If the samples of children and fathers do not match, then it becomes the base for divorce. Paternity Test has been commercialised. Any couple can go to a Pathology Lab to clear their doubts. There is no need to go through a legal route, even the court considers the lab results of an NABH approved lab result.
What is a DNA Test
Deoxyribonucleic acid Test provides the proof of family relationships among different individuals. This test identifies blood relationship and family tree. A father’s DNA always matches their children’s. A grandfather’s DNA will also match their grandson’s DNA. DNA tests are also being conducted for the following reasons:
- IVF (In Vitro Fertilization) – The business of breeding babies through ‘surrogacy’ is flourishing in India. The increasing number of fertilisation centers in the country is a testimony to the growing business. India is now becoming the center of fertility tourism. If a parent suspects that their actual ovum or sperm wasn’t used in the IVF process, they can perform the Maternity DNA Test or Paternity DNA test to clarify their doubts.
- Suspicion of child swap in the hospital- If the parents suspect that their child has been swapped in the hospital, then they can clear their doubt through a Maternity DNA test or Paternity DNA test.
- Suspicion of Adultery on wife – The most common cause of DNA-Paternity test is mutual suspicion. The husband can find out through the Paternity DNA test whether the child is his or not. Often, this test prevents family dispute and stops divorces when it comes to suspicion, however it also gives a decisive blow in divorces.
- In case to prove heritage – DNA test is also required in many cases to prove heritage.
- In context of immigration – DNA test can be done to prove the relationship between primary applicant and his family before giving permanent residence or citizenship.
Prateek Yadav will also face the challenge of Paternity LawFormer Uttar Pradesh Chief Minister Akhilesh Yadav’s step brother Prateek Yadav is also going to face the legal crisis of paternity rights. The law doesn’t recognise Samajwadi Party leader Mulayam Singh as the lawful father of Prateek Yadav. He was born on July 7, 1987, but Mulayam’s first wife Malti Devi died in 2003. On May 23, 2003, after the death of his first wife, Mulayam declared Sadhna Gupta as his wife. In 1994, Prateek Yadav’s school form had mentioned MS Yadav as the name of father and Mulayam’s office address in the address bar. In year 2000, Mulayam Singh’s name was mentioned as the guardian of Prateek Yadav. Sadhana Gupta is a resident of Etawah’s Bidhuna village. On July 4, 1986, Sadhna Gupta was married to Chandrakash Gupta of Farrukhabad. After his marriage, Prateek Yadav was born on July 7, 1987. Two years later, Sadhna and Chandra Prakash separated. According to the paternity law of India, Prateek Yadav is still the son of Chandra Prakash Gupta. Even for adoption, the law would require a formal consent of Chandra Prakash Gupta. So, this case is also going to see court’s way in the time to come.