Congress leader N D Tiwari on Thursday told the Delhi High Court that its order asking him to undergo DNA test, on a suit filed by a young man claiming to be his biological son, was "erroneous" as his mother's marriage with her husband was subsisting at the time of his birth.
"The single judge order asking the leader to undergo the DNA test was erroneous as a legal and valid marriage was subsisting between Ujjwala Sharma and Bimal Prasad Sharma, the legitimate father of Rohit Shekhar," senior advocate Ashok Desai, appearing for 85-year-old Tiwari, said.
Advancing arguments before a division bench headed by Justice Vikramajit Sen, Desai said the words, paternity and legitimacy, were interchangeable and no distinction can be drawn between them.
"By drawing distinction between words, paternity and legitimacy, the single judge erred and failed to appreciate the fact that enacting the law is not within the purview of the judiciary and in any case, the High Court has no power of making any law," Desai said.
Citing provisions of the Evidence Act, Desai said "the law raises presumption about the paternity of a child born during the subsistence of a valid marriage, as also it is undesirable on the ground of public policy to inquire into the paternity of a child whose parents have access to each other."
He also cited a Supreme Court ruling to buttress his argument and said even scientific tests like DNA test are not full proof.
"The DNA tests are 99.99 per cent conclusive," the bench said and also sought to know from Tiwari's counsel as to whether he sought a stay of the order.
Meanwhile, Rohit's counsel Kirtiman Singh said that let the leader give his sample for the DNA test in a sealed cover.
The bench also comprising Justice Siddharth Mridul posted the matter on February 7 for further hearing.
Tiwari, who had held the posts of Chief Minister of undivided Uttar Pradesh and later Uttarakhand, opposed the paternity suit filed by 31-year-old Rohit Shekhar claiming to be the biological son born out of a relationship between his mother Ujjwala Sharma and the leader.
Tiwari, who had last year resigned as Andhra Pradesh Governor, had countered the charges claiming that he never had any physical relationship with Ujjwala, who is also a Congress activist, and Rohit was not entitled to seek a DNA test as a matter of right.
Earlier, Justice S Ravindra Bhat had directed Tiwari to undergo a DNA test saying "the wider interest of a child of not being declared a bastard has to be kept in mind."