//
you're reading...
legal issues

Evidence Act sec.112 and sec. 45 – conflict between sec.112 and DNA TEST – DNA TEST PREVAILS OVER THE PRESUMPTION – Presumption of paternity when the husband and wife have access – husband pleaded non accesses – wife pleaded that there was restoration of relationship – No finding from the lower courts – DNA test shows that husband is not the father of daughter of wife – Apex court held that In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. = NANDLAL WASUDEO BADWAIK ….. APPELLANT VERSUS LATA NANDLAL BADWAIK & ANR. ….. RESPONDENTS = Published in judis.nic.in/supremecourt/filename=41129

2014 judis.nic.in/s.c./filename=41129

Evidence Act sec.112 and sec. 45 – conflict between sec.112 and DNA TEST – DNA TEST PREVAILS OVER THE PRESUMPTION – Presumption of paternity when the husband and wife have access – husband pleaded non accesses – wife pleaded that there was restoration of relationship – No finding from the lower courts – DNA test shows that husband is not the father of daughter of wife – Apex court held that In our opinion, when there  is  a  conflict  between  a conclusive proof envisaged under  law  and  a  proof  based  on  scientific advancement accepted by the world community to be correct, the latter  must prevail over the former. =

whether the DNA test would be  sufficient

to hold that the appellant is not the biological father of  respondent  no.

2, in the face of what has been provided under Section 112 of the  Evidence

Act, which reads as follows:

 

 

             “112. Birth during marriage, conclusive proof of  legitimacy.-

             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.”

 

 

 

 

     From a plain reading of the aforesaid, it is evident that a child  born

during the continuance of a valid marriage shall be a conclusive proof that

the child is a legitimate child of the man to whom the lady giving birth is

married. The provision makes the legitimacy of the child to be a conclusive

proof, if the conditions aforesaid are satisfied.  It can be denied only if

it is shown that the parties to the marriage have no access to  each  other

at any time when the child could have been begotten.  Here, in the  present

case, the wife had pleaded that the husband had access to her and, in fact,

the child was born in the said wedlock, but the  husband  had  specifically

pleaded that after his wife left the matrimonial home, she did  not  return

and thereafter, he had no access to her.  The wife has  admitted  that  she

had left the matrimonial home but again joined her husband.  Unfortunately,

none of the courts below have given any finding with regard to this plea of

the husband that he had or had not any access to his wife at the time  when

the child could have         been begotten.

 

 

     As stated earlier, the DNA test is an accurate test and on  that  basis

it is clear that the appellant is not the biological father  of  the  girl-

child.  

However, at the same time, the condition precedent  for  invocation

of Section 112 of the Evidence Act has been established and no finding with

regard to the plea of the husband that he had no access to his wife at  the

time  when  the  child  could  have  been  begotten  has   been   recorded.

Admittedly, the child has been born  during  the  continuance  of  a  valid

marriage.  

Therefore, the provisions of Section 112  of  the  Evidence  Act

conclusively prove that respondent No. 2 is the daughter of the  appellant.

At the same time, the DNA test reports, based on scientific analysis, in no

uncertain terms suggest that the appellant is not  the  biological  father.

In such circumstance, which would give  way  to  the  other  is  a  complex

question posed before us.

 

 

     We may remember that Section 112 of the Evidence Act was enacted  at  a

time when the modern scientific advancement and DNA test were not  even  in

contemplation of the Legislature.  

The result of DNA test  is  said  to  be

scientifically accurate.  

Although Section  112  raises  a  presumption  of

conclusive proof on satisfaction of the conditions enumerated  therein  but

the same is rebuttable. 

The presumption  may  afford  legitimate  means  of

arriving at an affirmative legal conclusion.  

While the truth  or  fact  is

known, in our opinion, there is no need or room for any presumption.  

Where

there is evidence to the contrary, the presumption is rebuttable  and  must

yield to proof.  

Interest of justice is best  served  by  ascertaining  the

truth and the court should be furnished with the best available science and

may not be left to bank upon presumptions, unless science has no answer  to

the facts in issue. 

In our opinion, when there  is  a  conflict  between  a

conclusive proof envisaged under  law  and  a  proof  based  on  scientific

advancement accepted by the world community to be correct, the latter  must

prevail over the former.

 

 

     We must understand the distinction between  a  legal  fiction  and  the

presumption of a fact.    Legal fiction assumes existence of a  fact  which

may  not  really  exist.   However  presumption  of  a  fact   depends   on

satisfaction of certain circumstances. Those circumstances logically  would

lead to the fact sought to be presumed.  Section 112 of  the  Evidence  Act

does not create a legal fiction but provides for presumption.

     The husband’s plea that he had no access to the wife when the child was

begotten stands proved by the DNA test report and in the  face  of  it,  we

cannot compel the appellant to bear the fatherhood of  a  child,  when  the

scientific reports prove to the contrary. We are conscious that an innocent

child may not be bastardized as the marriage between her mother and  father

was subsisting at the time of her birth,  but  in  view  of  the  DNA  test

reports  and  what  we  have  observed  above,  we  cannot  forestall   the

consequence.  It is  denying  the  truth.   “Truth  must  triumph”  is  the

hallmark of justice.

 

 

     As regards the authority of this  Court  in  the  case  of  Kamti  Devi

(Supra), this Court on appreciation of evidence came to the conclusion that

the husband had no opportunity whatsoever to have liaison  with  the  wife.

There was no DNA test held in the case.  In the said background  i.e.  non-

access of the husband with the wife, this Court held that the result of DNA

test “is not enough to escape from the conclusiveness of Section 112 of the

Act”.  The judgment has to be understood in the  factual  scenario  of  the

said case.  The said judgment has not held that DNA test is to be  ignored.

In fact,  this  Court  has  taken  note  of  the  fact  that  DNA  test  is

scientifically accurate.  We hasten to  add  that  in  none  of  the  cases

referred to above, this Court was confronted with a situation in which  DNA

test  report,  in  fact,  was  available  and  was  in  conflict  with  the

presumption of conclusive proof of legitimacy of the  child  under  Section

112 of the Evidence Act. In view of what  we  have  observed  above,  these

judgments in no way advance the case of the respondents.

 

 

     In the result, we allow this appeal, set aside the impugned judgment so

far as it directs payment of maintenance to respondent no. 2.  However,  we

direct that the payments already made  shall  not  be  recovered  from  the

respondents.
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.24 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.8852 of 2008)
NANDLAL WASUDEO BADWAIK ….. APPELLANT
VERSUS
LATA NANDLAL BADWAIK & ANR. ….. RESPONDENTS

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

Petitioner happens to be the husband of respondent no. 1, Lata
Nandlal Badwaik and alleged to be the father of girl child Netra alias Neha
Nandlal Badwaik, respondent no. 2, herein. The marriage between them was
solemnized on 30th of June, 1990 at Chandrapur. Wife filed an application
for maintenance under Section 125 of the Code of Criminal Procedure, but
the same was dismissed by the learned Magistrate by order dated 10th
December, 1993. Thereafter, the wife resorted to a fresh proceeding under
Section 125 of the Code of Criminal Procedure (hereinafter referred to as
the ‘Code’) claiming maintenance for herself and her daughter, inter alia,
alleging that she started living with her husband from 20th of June, 1996
and stayed with him for about two years and during that period got
pregnant. She was sent for delivery at her parents’ place where she gave
birth to a girl child, the respondent no. 2 herein. Petitioner-husband
resisted the claim and alleged that the assertion of the wife that she
stayed with him since 20th of June, 1996 is false. He denied that
respondent no. 2 is his daughter. After 1991, according to the husband, he
had no physical relationship with his wife. The learned Magistrate
accepted the plea of the wife and granted maintenance at the rate of
Rs.900/- per month to the wife and at the rate of Rs.500/- per month to the
daughter. The challenge to the said order in revision has failed so also a
petition under Section 482 of the Code, challenging those orders.

It is against these orders, the petitioner has preferred this special
leave petition.

Leave granted.

Taking note of the challenge to the paternity of the child, this
Court by order dated 10th of January, 2011 passed the following order:

“…………However, the petitioner-husband had challenged the
paternity of the child and had claimed that no maintenance
ought to have been awarded to the child. The petitioner had
also applied for referring the child for DNA test, which was
refused. It is against the said order of refusal that the
present Special Leave was filed and the same prayer for
conducting the DNA test was made before us. On 8th November,
2010 we had accordingly, directed the petitioner-husband to
deposit all dues, both arrear and current, in respect of the
maintenance awarded to the wife and child to enable us to
consider the prayer for holding of such DNA test. Such deposit
having been made on 3rd January, 2011, we had agreed to allow
the petitioner’s prayer for conducting DNA test for
ascertaining the paternity of the child.
We have since been informed by counsel for the parties that
a Forensic Science Laboratory in Nagpur conducts the very same
test, as has been asked for, by the Petitioner. Accordingly,
we direct the petitioner-Nandlal Wasudeo Badwaik and the
respondent No. 1-Ms. Lata Nandlal Badwaik to make a joint
application to the Forensic Science Laboratory, Nagpur,
situated at Jail Road, Dhantoli, for conducting such test. The
petitioner, as well as the respondent No. 1, shall present
themselves at the Laboratory with respondent No. 2 for the said
purpose on the date to be fixed by the laboratory, and,
thereafter, the laboratory is directed to send the result of
such test to this Court within four weeks thereafter. The
expenses for the test to be conducted shall be borne by the
petitioner-husband.”
In the light of the aforesaid order, the Regional Forensic Science
Laboratory, Nagpur has submitted the result of DNA testing and opined that
appellant “Nandlal Vasudev Badwaik is excluded to be the biological father
of Netra alias Neha Nandlal Badwaik”, respondent no. 2 herein.
Respondents, not being satisfied with the aforesaid report, made a
request for re-test. The said prayer of the respondents was accepted and
this Court by order dated 22nd of July, 2011 gave the following direction:
“Despite the fact that the report of the DNA Test conducted at
the Regional Forensic Science Laboratory, State of Maharashtra,
Nagpur-12, indicates that the petitioner is not the biological
father of the respondent No. 2, on the prayer made on behalf of
the respondents for a re-test, we are of the view that such a
prayer may be allowed having regard to the serious consequences
of the Report which has been filed.
Accordingly, we direct that a further DNA Test be conducted at
the Central Forensic Laboratory, Ministry of Home Affairs,
Government of India at Hyderabad and for the said purpose the
parties are directed to appear before the Laboratory on 24th
August, 2011 at 11.00 a.m.”
As directed, the Central Forensic Science Laboratory, Hyderabad
submitted its report and on that basis opined that the appellant, “Nandlal
Wasudeo Badwaik can be excluded from being the biological father of Miss
Neha Nandlal Badwaik”, respondent no. 2 herein.
At the outset, Mr. Manish Pitale appearing for the respondents
submits that the appellant having failed to establish that he had no access
to his wife at any time when she could have begotten respondent no. 2, the
direction for DNA test ought not to have been given. In view of the
aforesaid he submits that the result of such a test is fit to be ignored.
In support of the submission he has placed reliance on a judgment of this
Court in Goutam Kundu v. State of W.B., (1993) 3 SCC 418, relevant portions
whereof read as under:

“24. This section requires the party disputing the paternity
to prove non-access in order to dispel the presumption.
“Access” and “non-access” mean the existence or non-existence
of opportunities for sexual intercourse; it does not mean
actual “cohabitation”.
26. From the above discussion it emerges—
(1) That courts in India cannot order blood test as a matter
of course;
(2) wherever applications are made for such prayers in order
to have roving inquiry, the prayer for blood test cannot be
entertained.
(3) there must be a strong prima facie case in that the
husband must establish non-access in order to dispel the
presumption arising under Section 112 of the Evidence Act.
(4) the court must carefully examine as to what would be the
consequence of ordering the blood test; whether it will have
the effect of branding a child as a bastard and the mother as
an unchaste woman.
(5) no one can be compelled to give sample of blood for
analysis.
27. Examined in the light of the above, we find no difficulty
in upholding the impugned order of the High Court, confirming
the order of the Additional Chief Judicial Magistrate, Alipore
in rejecting the application for blood test…………….”

Yet another decision on which reliance has been placed is the decision
of this Court in the case of Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449,
paragraph 13, which is relevant for the purpose is quoted below:
“13. We may remember that Section 112 of the Evidence Act was
enacted at a time when the modern scientific advancements with
deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA)
tests were not even in contemplation of the legislature. The
result of a genuine DNA test is said to be scientifically
accurate. But even that is not enough to escape from the
conclusiveness of Section 112 of the Evidence Act e.g. if a
husband and wife were living together during the time of
conception but the DNA test revealed that the child was not
born to the husband, the conclusiveness in law would remain
irrebuttable. This may look hard from the point of view of the
husband who would be compelled to bear the fatherhood of a
child of which he may be innocent. But even in such a case the
law leans in favour of the innocent child from being
bastardised if his mother and her spouse were living together
during the time of conception. Hence the question regarding
the degree of proof of non-access for rebutting the
conclusiveness must be answered in the light of what is meant
by access or non-access as delineated above. (See Kamti Devi
v. Poshi Ram, 2001 (5) SCC 311.)”
Reliance has also been placed on a decision of this Court in the case
of Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC
633, in which it has been held as follows:
“22. In our view, when there is apparent conflict between the
right to privacy of a person not to submit himself forcibly to
medical examination and duty of the court to reach the truth,
the court must exercise its discretion only after balancing
the interests of the parties and on due consideration whether
for a just decision in the matter, DNA test is eminently
needed. DNA test in a matter relating to paternity of a child
should not be directed by the court as a matter of course or
in a routine manner, whenever such a request is made. The
court has to consider diverse aspects including presumption
under Section 112 of the Evidence Act; pros and cons of such
order and the test of “eminent need” whether it is not
possible for the court to reach the truth without use of such
test.”
Miss Anagha S. Desai appearing on behalf of the appellant submits that
this Court twice ordered for DNA test and, hence, the question as to
whether this was a fit case in which DNA profiling should or should not
have been ordered is academic. We find substance in the submission of Ms.
Desai. Fact of the matter is that this Court not only once, but twice gave
directions for DNA test. The respondents, in fact, had not opposed the
prayer of DNA test when such a prayer was being considered. It is only
after the reports of the DNA test had been received, which was adverse to
the respondents, that they are challenging it on the ground that such a
test ought not to have been directed. We cannot go into the validity of
the orders passed by a coordinate Bench of this Court at this stage. It
has attained finality. Hence, we do not find any merit in the submission
of the learned counsel for the respondents. As regards the decision of
this Court in the cases of Goutam Kundu (supra), Banarsi Dass (supra) and
Bhabani Prasad Jena (supra), the same have no bearing in the facts and
circumstances of the case. In all these cases, the court was considering
as to whether facts of those cases justify passing of an order for DNA
test. When the order for DNA test has already been passed, at this stage,
we are not concerned with this issue and we have to proceed on an
assumption that a valid direction for DNA test was given.
Ms. Desai submits that in view of the opinions, based on DNA profiling
that appellant is not the biological father, he cannot be fastened with the
liability to pay maintenance to the girl-child born to the wife. Mr.
Pitale, however, submits that the marriage between the parties has not
been dissolved, and the birth of the child having taken place during the
subsistence of a valid marriage and the husband having access to the wife,
conclusively prove that the girl-child is the legitimate daughter of the
appellant. According to him, the DNA test cannot rebut the conclusive
presumption envisaged under Section 112 of the Evidence Act. According to
him, respondent no. 2, therefore, has to be held to be the appellant’s
legitimate daughter. In support of the submission, reliance has been
placed on a decision of this Court in the case of Kamti Devi v. Poshi Ram,
(2001) 5 SCC 311, and reference has been made to paragraph 10 of the
judgment, which reads as follows:
“10. ………The result of a genuine DNA test is said to be
scientifically accurate. But even that is not enough to escape
from the conclusiveness of Section 112 of the Act e.g. if a
husband and wife were living together during the time of
conception but the DNA test revealed that the child was not
born to the husband, the conclusiveness in law would remain
irrebuttable. This may look hard from the point of view of the
husband who would be compelled to bear the fatherhood of a
child of which he may be innocent. But even in such a case the
law leans in favour of the innocent child from being
bastardised if his mother and her spouse were living together
during the time of conception……….”
Before we proceed to consider the rival submissions, we deem it
necessary to understand what exactly DNA test is and ultimately its
accuracy. All living beings are composed of cells which are the smallest
and basic unit of life. An average human body has trillion of cells of
different sizes. DNA (Deoxyribonucleic Acid), which is found in the
chromosomes of the cells of living beings, is the blueprint of an
individual. Human cells contain 46 chromosomes and those 46 chromosomes
contain a total of six billion base pair in 46 duplex threads of DNA. DNA
consists of four nitrogenous bases – adenine, thymine, cytosine, guanine
and phosphoric acid arranged in a regular structure. When two unrelated
people possessing the same DNA pattern have been compared, the chances of
complete similarity are 1 in 30 billion to 300 billion. Given that the
Earth’s population is about 5 billion, this test shall have accurate
result. It has been recognized by this Court in the case of Kamti Devi
(supra) that the result of a genuine DNA test is scientifically accurate.
It is nobody’s case that the result of the DNA test is not genuine and,
therefore, we have to proceed on an assumption that the result of the DNA
test is accurate. The DNA test reports show that the appellant is not the
biological father of the girl-child.
Now we have to consider as to whether the DNA test would be sufficient
to hold that the appellant is not the biological father of respondent no.
2, in the face of what has been provided under Section 112 of the Evidence
Act, which reads as follows:
“112. Birth during marriage, conclusive proof of legitimacy.-
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.”
From a plain reading of the aforesaid, it is evident that a child born
during the continuance of a valid marriage shall be a conclusive proof that
the child is a legitimate child of the man to whom the lady giving birth is
married. The provision makes the legitimacy of the child to be a conclusive
proof, if the conditions aforesaid are satisfied. It can be denied only if
it is shown that the parties to the marriage have no access to each other
at any time when the child could have been begotten. Here, in the present
case, the wife had pleaded that the husband had access to her and, in fact,
the child was born in the said wedlock, but the husband had specifically
pleaded that after his wife left the matrimonial home, she did not return
and thereafter, he had no access to her. The wife has admitted that she
had left the matrimonial home but again joined her husband. Unfortunately,
none of the courts below have given any finding with regard to this plea of
the husband that he had or had not any access to his wife at the time when
the child could have been begotten.
As stated earlier, the DNA test is an accurate test and on that basis
it is clear that the appellant is not the biological father of the girl-
child. However, at the same time, the condition precedent for invocation
of Section 112 of the Evidence Act has been established and no finding with
regard to the plea of the husband that he had no access to his wife at the
time when the child could have been begotten has been recorded.
Admittedly, the child has been born during the continuance of a valid
marriage. Therefore, the provisions of Section 112 of the Evidence Act
conclusively prove that respondent No. 2 is the daughter of the appellant.
At the same time, the DNA test reports, based on scientific analysis, in no
uncertain terms suggest that the appellant is not the biological father.
In such circumstance, which would give way to the other is a complex
question posed before us.
We may remember that Section 112 of the Evidence Act was enacted at a
time when the modern scientific advancement and DNA test were not even in
contemplation of the Legislature. The result of DNA test is said to be
scientifically accurate. Although Section 112 raises a presumption of
conclusive proof on satisfaction of the conditions enumerated therein but
the same is rebuttable. The presumption may afford legitimate means of
arriving at an affirmative legal conclusion. While the truth or fact is
known, in our opinion, there is no need or room for any presumption. Where
there is evidence to the contrary, the presumption is rebuttable and must
yield to proof. Interest of justice is best served by ascertaining the
truth and the court should be furnished with the best available science and
may not be left to bank upon presumptions, unless science has no answer to
the facts in issue. In our opinion, when there is a conflict between a
conclusive proof envisaged under law and a proof based on scientific
advancement accepted by the world community to be correct, the latter must
prevail over the former.
We must understand the distinction between a legal fiction and the
presumption of a fact. Legal fiction assumes existence of a fact which
may not really exist. However presumption of a fact depends on
satisfaction of certain circumstances. Those circumstances logically would
lead to the fact sought to be presumed. Section 112 of the Evidence Act
does not create a legal fiction but provides for presumption.
The husband’s plea that he had no access to the wife when the child was
begotten stands proved by the DNA test report and in the face of it, we
cannot compel the appellant to bear the fatherhood of a child, when the
scientific reports prove to the contrary. We are conscious that an innocent
child may not be bastardized as the marriage between her mother and father
was subsisting at the time of her birth, but in view of the DNA test
reports and what we have observed above, we cannot forestall the
consequence. It is denying the truth. “Truth must triumph” is the
hallmark of justice.
As regards the authority of this Court in the case of Kamti Devi
(Supra), this Court on appreciation of evidence came to the conclusion that
the husband had no opportunity whatsoever to have liaison with the wife.
There was no DNA test held in the case. In the said background i.e. non-
access of the husband with the wife, this Court held that the result of DNA
test “is not enough to escape from the conclusiveness of Section 112 of the
Act”. The judgment has to be understood in the factual scenario of the
said case. The said judgment has not held that DNA test is to be ignored.
In fact, this Court has taken note of the fact that DNA test is
scientifically accurate. We hasten to add that in none of the cases
referred to above, this Court was confronted with a situation in which DNA
test report, in fact, was available and was in conflict with the
presumption of conclusive proof of legitimacy of the child under Section
112 of the Evidence Act. In view of what we have observed above, these
judgments in no way advance the case of the respondents.
In the result, we allow this appeal, set aside the impugned judgment so
far as it directs payment of maintenance to respondent no. 2. However, we
direct that the payments already made shall not be recovered from the
respondents.
……………………J
[CHANDRAMAULI KR. PRASAD]

…………………..J
[JAGDISH SINGH KHEHAR]
NEW DELHI
JANUARY 06, 2014

———————–
3

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,941,252 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,874 other followers

Follow advocatemmmohan on WordPress.com