Calcutta High Court orders paternity test in rape case after accused claims "non-access" to victim

The Calcutta High Court on Monday ordered DNA paternity test of a child allegedly born out of rape after the accused moved the Court claiming that he was not the father of the child [Lob Das vs The State Of West Bengal & Another]..Justice Shampa Dutt (Paul) allowed the man’s plea after he claimed that he did not have any access to the rape victim and she was in a relationship with another man.“When “non-access” is claimed in such a relationship, it is the right of the accused to have the same proved by way of evidence available/possible,” the Court said..The accused was booked in 2008 on the complaint moved by the victim’s father stating that his daughter had conceived after being in a physical relationship with the man following a promise to marry. The man used to stay at the house of the complainant’s relative. Following the complaint, he was booked for rape and cheating. .In her cross-examination during the trial, the victim agreed for the paternal test to prove that the accused was the father of the child.However, the accused pointed out that the victim herself had admitted that she was in a relationship with another man. He then moved the trial court for paternity test of the child.On August 01, 2023, the trial court denied his request as it termed his plea a ploy to delay the matter. The accused then moved the High Court..The Court observed that while a ‘positive’ paternity test shall prima facie prove access to the relationship, the proof of the offence would still have to be proven by the relevant evidence. On the other hand, it noted that the ‘negative’ paternity test will strengthen the defence of non-access as raised by the accused.“The petitioner will then be entitled to relief as provided under the law,” it added..Accordingly, the Court said the man’s plea was required to be allowed not only in the interest of justice but also in exercise of a valuable right available to him. A denial of the prayer would be an abuse of the process of the law, it added.While ordering the child’s DNA test, the Court asked the accused to deposit ₹1 lakh with the trial court. The money will be paid to the victim and her child in case the test turns out to be positive.“Trial Court to complete the total procedure preferably within 60 days from the date of this order and then proceed in accordance with law,” the Court ordered..Advocates Dipankar Aditya and Tina Biswas represented the accused.Advocate Bibaswan Bhattacharya represented the State..[Read Judgment]