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Wednesday, January 8, 2014

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



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