New Delhi, Jan 27 (PTI) Congress leader N D Tiwaritoday told the Delhi High Court that its order asking him toundergo DNA test, on a suit filed by a young man claiming tobe his biological son, was "erroneous" as his mother''smarriage with her husband was subsisting at the timeof his birth.
"The single judge order asking the leader to undergothe DNA test was erroneous as a legal and valid marriage wassubsisting between Ujjwala Sharma and Bimal Prasad Sharma, thelegitimate father of Rohit Shekhar," senior advocate AshokDesai, appearing for 85-year-old Tiwari, said.
Advancing arguments before a division bench headed byJustice Vikramajit Sen, Desai said the words, paternity andlegitimacy, were interchangeable and no distinction can bedrawn between them.
"By drawing distinction between words, paternity andlegitimacy, the single judge erred and failed to appreciatethe fact that enacting the law is not within the purview ofthe judiciary and in any case, the High Court has no power ofmaking any law," Desai said.
Citing provisions of the Evidence Act, Desai said "thelaw raises presumption about the paternity of a child bornduring the subsistence of a valid marriage, as also it isundesirable on the ground of public policy to inquire into thepaternity of a child whose parents have access to each other."
He also cited a Supreme Court ruling to buttress hisargument and said even scientific tests like DNA test are notfull proof.
"The DNA tests are 99.99 per cent conclusive," thebench said and also sought to know from Tiwari''s counsel as towhether he sought a stay of the order.
Meanwhile, Rohit''s counsel Kirtiman Singh said thatlet the leader give his sample for the DNA test in a sealedcover.
The bench also comprising Justice Siddharth Mridulposted the matter on February 7 for further hearing.
Tiwari, who had held the posts of Chief Minister ofundivided Uttar Pradesh and later Uttarakhand, opposed thepaternity suit filed by 31-year-old Rohit Shekhar claiming tobe the biological son born out of a relationship between hismother Ujjwala Sharma and the leader.
Tiwari, who had last year resigned as Andhra PradeshGovernor, had countered the charges claiming that he never hadany physical relationship with Ujjwala, who is also a Congressactivist, and Rohit was not entitled to seek a DNA test as amatter of right.
Earlier, Justice S Ravindra Bhat had directed Tiwarito undergo a DNA test saying "the wider interest of a child ofnot being declared a bastard has to be kept in mind." PTI SJK