Full Judgment Text
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.
JUDGMENT
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
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between them was solemnized on 30 of June, 1990 at
Chandrapur. Wife filed an application for
maintenance under Section 125 of the Code of Criminal
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Procedure, but the same was dismissed by the learned
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Magistrate by order dated 10 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
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from 20 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
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stayed with him since 20 of June, 1996 is false. He
denied that respondent no. 2 is his daughter. After
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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
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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
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the child, this Court by order dated 10 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
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before us. On 8 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
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having been made on 3 January,
2011, we had agreed to allow the
petitioner’s prayer for conducting
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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.”
JUDGMENT
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.
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Respondents, not being satisfied with the
aforesaid report, made a request for re-test. The
said prayer of the respondents was accepted and this
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Court by order dated 22 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
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before the Laboratory on 24
August, 2011 at 11.00 a.m.”
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As directed, the Central Forensic Science
Laboratory, Hyderabad submitted its report and on
that basis opined that the appellant, “Nandlal
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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:
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“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—
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(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.
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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,
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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 .)”
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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.”
JUDGMENT
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
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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
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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
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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
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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,
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(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……….”
JUDGMENT
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
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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
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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.
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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
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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
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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.
JUDGMENT
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
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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
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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,
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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
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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.
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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
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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
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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
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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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