The mother of the child, who was born out of wedlock, may apply to the court for an affiliation order, which would compel the father of the child to pay money towards the maintenance and education of the child as per the order.
The applicant mother must apply before the birth of the child or within five years from such birth. If the mother is dead, the person who has the custody of the child can similarly make an application.
The court needs to determine, firstly whether the alleged father is actually the biological father of the child. In practice, this means that the applicant mother would need to prove to the court that the alleged father is the actual father of the child.
The law related to this procedure is chapter 278 which came into force in 1955. This law suggests certain methods of coming to this conclusion, one example is, the father cohabiting with the mother to the exclusion of all male persons during the period of possible conception of the child.
We now know, for many years, that DNA tests could prove whether the father is the biological father of the child with the accuracy of almost hundred percent. However, as the act was passed only after a few years of discovery of DNA, this method was not included in this act.
The DNA testing method in practice is only used when both parties agree to have it done, otherwise it is not among the ones mentioned in the said act. This issue was challenged in court with the argument that, although the court does not have a right to order DNA testing according to this act, with its inherent jurisdiction it has the power to give such order. The high court decision states that, as the act does not give such clear right to the court, no such order can be given.
On the one side, it can be argued that collecting somebody’s DNA sample is an invasion of their constitutional and human rights. On the other hand, considering that the necessary DNA sample can be easily taken, this method could be allowed. Having in mind also that the aim of the act in question is to provide maintenance and education opportunities for the child in question, the necessity for doing this is more pressing.
Therefore such an amendment is long overdue and the necessary steps should be taken by the legislative body in order to correct this wrong.