Held: Supreme Court held DNA test as the accurate proof in a dispute
over the parenthood of a child and said a person cannot be forced to pay
maintenance to such a child. The Supreme Court held the proof based on
scientific advancement “must prevail” over the definite proof envisioned under
law and said it was correct to determine the parenthood of a person through a
DNA test. It stressed that the result of DNA test was said to be scientifically
accurate and it could not force a man to bear the fatherhood of a child when
the scientific reports prove to the contrary.
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
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