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Monday, January 5, 2015

CIVIL APPEAL NO. 9744 OF 2014 (Arising out of SLP(C) No.5694 of 2013) Dipanwita Roy …. Appellant versus Ronobroto Roy …. Respondent

                                                        “REPORTABLE”

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.   9744    OF 2014
                   (Arising out of SLP(C) No.5694 of 2013)


Dipanwita Roy                                           …. Appellant

                                   versus


Ronobroto Roy                                           …. Respondent

                               J U D G M E N T


Jagdish Singh Khehar, J.


1.     The  petitioner-wife  Dipanwita  Roy   and   the   respondent-husband
Ronobroto Roy, were married at Calcutta. Their marriage  was  registered  on
9.2.2003.  The present controversy  emerges  from  a  petition  filed  under
Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to  as  the
'Act') by the respondent, inter alia, seeking dissolution  of  the  marriage
solemnised  between  the  petitioner-wife  and  the  respondent-husband,  on
25.1.2003.
2.    One of the grounds for seeking  divorce  was,  based  on  the  alleged
adulterous life style of the petitioner-wife.  For his above assertion,  the
respondent-husband made the following allegations in paragraphs 23 to 25  of
his petition:
“23.  That since 22.09.2007 the petitioner never lived with  the  respondent
and did not share bed at all.   On  a  very  few  occasion  since  then  the
respondent came to the  petitioner's  place  of  residence  to  collect  her
things and lived there against the will of all to avoid public  scandal  the
petitioner did not turn the respondent house on those occasion.

24.   That by her extravagant life style the respondent has  incurred  heavy
debts.  Since she has not disclosed her present  address  to  bank  and  has
only given the address of the petitioner.  The men and collection agents  of
different  banks  are  frequently  visiting  the  petitioner's   house   and
harassing the petitioner.  They are looking for the respondent for  recovery
of their dues.  Notice from Attorney Firms for  recovery  of  due  from  the
respondent and her credit card statements  showing  heavy  debts  are  being
sent to the petitioner's address.  The respondent purchased one car in  2007
with the petitioner's uncle, Shri Subrata Roy Chowdhary  as  the  guarantor.
The respondent has failed to pay the installments regularly.

25.   That the petiitoner states that the respondent has gone  astray.   She
is leading a fast life and has lived in extra marital relationship with  the
said Mr. Deven Shah, a well to do person who too is a carrier gentlemen  and
has given birth to a child as a result of her cohabitation with  Shri  Deven
Shah.  It is reported that the respondent has given birth  to  a  baby  very
recently.  The respondent is presently living at the  address  as  mentioned
in the cause title of the plaint.”
                                                          (emphasis is ours)

3.    The above factual position was contested  by  the  petitioner-wife  in
her reply wherein she, inter alia, submitted as under:
“That the statements made in paragraph Nos.  5  and  6  of  the  plaint  are
admitted by the respondent to the extent that the  daughter  namely  “Biyas”
is residing in the custody of the respondent's mother with  the  arrangement
of the petitioner and as a result of which the petitioner used  to  come  at
his mother in law's place and spending  days   therein  and  the  respondent
used to spend time with him and carrying  on  their  matrimonial  obligation
which includes co-habitation.

That the statements made in paragraph  No.7  in  the  plaint  is  absolutely
false, concocted, untrue, frivolous, vexatious and made with the purpose  of
harassing the respondent and the  petitioner  is  call  upon  to  prove  the
allegation intoto.  It is categorically denied by the  respondent  that  she
was a selfish person, very much concern about her own self and  own  affairs
and without any concern for  the  petitioner  as  alleged.   The  respondent
further denied that she was self willed, arrogant  and  short  tempered  and
she used to fly into rage every now and then over small matter and  used  to
quarrel with the petitioner and  his  mother  as  alleged.   The  respondent
further denied and disputes that she used to  go  out  every  now  and  then
according to her whims without  informing  either  the  petitioner  and  his
mother as alleged. That the respondent further denies and disputes that  she
failed to disclose her whereabouts and used to stay out for  long  hours  as
alleged.  The respondent further denies and disputes that she does not  care
little for the feelings of either the petitioner or his mother  as  alleged.
The respondent further denies and disputes that she got extremely  irritated
and used to quarrel with the petitioner whenever  the  petitioner  tried  to
speak to her as alleged.

That the statements made in  paragraph  23  in  the  plaint  are  absolutely
imaginative, concocted and false  and  the  same  are  being  made  for  the
purpose of this case.  The respondent denies and  disputes  in  its  present
form the statement they lead an  extravagant  life  style  and  thereby  she
incurred  debts  as  alleged  therein  and  the  respondent   provided   her
matrimonial house address to the bank as because the same is  her  permanent
address  after  her  marriage.   The  respondent  denies  and  disputes  the
statement that men and collection agent of different banks  were  frequently
visiting the petitioner's house and harassing the petitioner  and  they  are
looking for the respondent for recovery of dues  as  alleged  therein.   The
respondent is to state and submit that many a times at  the  behest  of  the
petitioner she used to purchase many things for him and spent lot  of  money
while  attending  dinner  and  lunch  at  clubs  and  restaurants  with  the
petitioner.  The respondent is to  further  state  and  submit  on  repeated
insistence of the petitioner the respondent purchased a car  on  credit  for
accommodating herself smooth journey at her  office  work  as  well  as  for
other places and in such event the petitioner promised  that  he  would  pay
50% of the EMI in respect of purchase of the car which  is  actually  failed
to contribute.  It is needless to mention that the respondent  had  incurred
some debts due to financial recession in consequences of which she lost  her
job and as a result of that she failed to make payment  of  her  outstanding
to the bank in spite of her willingness although her parents extended  their
helpful hands to accommodate her which could enable to  come  out  from  the
debts but the petitioner is such situation kept himself silent.

That the statements made  in  paragraph  no.24  in  the  plaint  are  false,
untrue, frivolous and concocted and the same are being made with a  malafide
intention for degrading and harassing the respondent in the eye  of  society
in order to get the divorce from her. The  respondent  strongly  denies  and
disputes the statement that she is leading a  fast  life  in  extra  marital
relationship with one Mr. Deven Shah and she had given a birth  of  a  child
as  a  result  of  cohabitation  with  Shri  Deven  Shah  as  alleged.   The
respondent further denies and disputes the statement that she ever  live  in
the address mentioned in the case title in the plaint  as  alleged  and  the
petitioner is call upon to prove the statements into.

The respondent is to  state  and  submit  that  she  had  no  extra  marital
relationship with one Mr. Deven Shah.  It is pertinent to mention  that  the
respondent  is  having  a  continuous  matrimonial  relationship  with   the
petitioner and the petitioner too performed the matrimonial relation  to  as
well as the cohabitation with the  respondent  in  great  spirit  and  as  a
result of which  a male chid was  born.   At  this  stage  raising  question
regarding birth of the child would actually  put  adverse  effect  not  only
towards the family but also towards of the mind of  the  tender  aged  child
and this unscrupulous attitude is  actually  goes  against  the  concept  of
welfare of the child.”
                                                          (emphasis is ours)

A perusal of the written statement filed on behalf  of  the  petitioner-wife
reveals  that  the  petitioner-wife  expressly  asserted   the   factum   of
cohabitation during the subsistence of their marriage, and also  denied  the
accusations  levelled  by  the  respondent-husband  of  her  extra   marital
relationship,  as  absolutely  false,    concocted,  untrue,  frivolous  and
vexatious.
4.    In order to substantiate his claim, in respect of  the  infidelity  of
the petitioner-wife, and to establish that the son born to her was not  his,
the respondent-husband moved an application on 24.7.2011 seeking a DNA  test
of  himself  (the  respondent-husband)  and  the  male  child  born  to  the
petitioner-wife. The purpose seems  to  be,  that  if  the  DNA  examination
reflected, that the male child born to  the  petitioner-wife,  was  not  the
child of the respondent-husband, the allegations  made  by  the  respondent-
husband in paragraphs 23 to 25 of the petition, would  stand  substantiated.
      The petitioner-wife filed written  objections  thereto,  categorically
asserting, that the factual position depicted in the  application  filed  by
the respondent-husband was false, frivolous, vexatious  and  motivated.   It
was asserted that the allegations were designed in  a  sinister  manner,  to
cast a slur on the reputation of the petitioner-wife.   The  petitioner-wife
strongly denied and disputed  the  statement  made  at  the  behest  of  the
respondent-husband to the effect, that she was leading a fast life in  extra
marital relationship with Mr. Deven Shah, and had given birth to a child  as
a result of her cohabitation  with  the  said  Mr.  Deven  Shah.   She  also
asserted, that she  had  a  continuous  matrimonial  relationship  with  the
respondent-husband,  and  that,   the   respondent-husband   had   factually
performed all the  matrimonial  obligations  with  her,  and  had  factually
cohabited with her.  The petitioner-wife accordingly  sought  the  dismissal
of the application filed by  the  respondent-husband,  for  a  DNA  test  of
himself and the male child born to  the  petitioner-wife.   The  respondent-
husband filed a reply affidavit reiterating the factual  position  contained
in the application, and thereby also repudiating the assertions made by  the
petitioner-wife in her written objections.
5.    The Family Court by an order dated  27.08.2012  dismissed  the  prayer
made by the  respondent-husband,  for  conducting  the  afore-mentioned  DNA
test.
6.    Dissatisfied with the order passed by the Family Court  on  27.8.2012,
the respondent-husband approached the High Court  at  Calcutta  (hereinafter
referred to as the 'High Court') in its  civil  revisional  jurisdiction  by
filing CO No.3590 of 2012 under Article 227 of the  Constitution  of  India.
The High Court allowed the petition filed by the respondent-husband vide  an
order dated 6.12.2012.  The operative  part  of  the  impugned  order  dated
6.12.2012 is being extracted hereunder:
“CO No.3590 of 2012 is disposed of by setting aside the order  impugned  and
by directing the DNA test of the son of the wife  to  be  conducted  at  the
Central Forensic Science Laboratory on December  20,  2012.  The  wife  will
accompany her son to the laboratory at 11  am  when  the  petitioner  herein
will also be present and the DNA samples of the child and the  husband  will
be obtained by the laboratory in presence of  both  the  husband  and  wife.
The expenses for the procedure will be borne by the husband and  the  result
will be forwarded by the laboratory  as  expeditiously  as  possible  to  be
husband, the wife and the trial Court.  The expenses for such  purpose  will
be obtained in advance by the laboratory from the husband.

In addition, prior to December 20, 2012 the husband will deposit  a  sum  of
Rs.1 lakh with the trial court which will stand forfeited and made  over  to
the wife in the event the paternity test on the basis  of  the  DNA  results
shows the husband to be the father of the child.  In the  event  the  result
reveals that the petitioner is not the father of the child, the  money  will
be refunded by the trial Court to the petitioner herein.

The wife has sought  to  file  an  affidavit,  but  such  request  has  been
declined. The wife seeks a  stay  of  operation  of  this  order,  which  is
refused.  CO No.3590 of 2012 is disposed of without any order as to costs.

A copy of this order will immediately be forwarded to the laboratory by  the
husband such that the laboratory is ready to obtain the DNA  sample  on  the
specified date.”

                                                          (emphasis is ours)
Aggrieved with the  order  passed  by  the  High  Court  on  6.12.2012,  the
petitioner-wife has approached this Court  by  filing  the  instant  special
leave petition.  Notice  was  issued  by  this  Court  on  15.2.2013.    The
respondent-husband has entered appearance.  Pleadings are complete.
7.    Leave granted.
8.    Learned  counsel  for  the  appellant-wife,  in  the  first  instance,
invited our attention to Section 112 of the Indian Evidence Act.   The  same
is being extracted hereunder:
“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.”


Based on the aforesaid provision, learned  counsel  for  the  appellant-wife
drew our attention to decision rendered by the  Privy  Council  in  Karapaya
Servai v. Mayandi, AIR 1934 PC 49,  wherein  it  was  held,  that  the  word
'access' used in  Section  112  of  the  Evidence  Act,  connoted  only  the
existence of an opportunity for marital intercourse, and  in  case  such  an
opportunity was shown to have existed during the  subsistence  of  a   valid
marriage,  the  provision  by  a  fiction  of  law,  accepted  the  same  as
conclusive proof of the fact that the child born during the  subsistence  of
the valid marriage, was a legitimate child.  It was the  submission  of  the
learned counsel for the appellant-wife, that the determination of the  Privy
Council in Karapaya Servai's case(supra)  was  approved  by  this  Court  in
Chilukuri  Venkateshwarly  vs.  Chilukuri  Venkatanarayana,  1954  SCR  424.
Learned counsel for the appellant-wife  also  invited  our  attention  to  a
decision rendered by this Court in Goutam Kundu vs.  State  of  West  Bengal
and another, (1993) 3 SCC 418, wherein  this  Court,  inter  alia,  held  as
under:
“(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 samle of blood for analysis.”


Reliance was also placed on the decision rendered by  this  Court  in  Kamti
Devi and another v. Poshi Ram, AIR 2001 SC 2226,  wherefrom,  the  following
observations made by this Court, were sought to be highlighted:
“10.  But Section 112 itself provides an outlet to the party  who  wants  to
escape from the rigour of that conclusiveness.  The said outlet  is,  if  it
can be shown that the parties had no access to each other at the  time  when
the child could have been begotten the presumption  could  be  rebutted.  In
other words, the party who wants to  dislodge  the  conclusiveness  has  the
burden to show a negative, not merely that he did not have  the  opportunity
to approach his wife but that she  too  did  not  have  the  opportunity  of
approaching him during the relevant time. Normally, the rule of evidence  in
other instances is  that  the  burden  is  on  the  party  who  asserts  the
positive, but in this instance the burden is cast on the  party  who  pleads
the  negative.   The  raison  d'etre  is  the  legislative  concern  against
illegitimatizing a child.  It is  a  sublime  public  policy  that  children
should not suffer social disability on account of the laches  or  lapses  of
parents.

11.   We may remember that Section 112 of the Evidence Act was enacted at  a
time when the modern scientific advancements with Dioxy Nucleric 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 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 unrebuttable.  This may look  hard  from  thepoint  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 bastardized 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.

12.....Its corollary is that the burden of the plaintiff-husband  should  be
higher than the standard of preponderance of  probabilities.   The  standard
of proof in such cases must at least be of a degree in between  the  two  as
to ensure that there  was  no  possibility  of  the  child  being  conceived
through the plaintiff-husband. “
                                                          (emphasis is ours)

Lastly, learned counsel for  the  appellant-wife,  placed  reliance  on  the
decision rendered by this Court in Sham Lal @ Kuldeep vs. Sanjeev Kumar  and
others, (2009) 12 SCC 454, wherein it was inter alia, held as under:
“Once the validity of marriage is proved then there  is  strong  presumption
about the legitimacy of children born from that  wedlock.   The  presumption
can  only  be  rebutted  by  a  strong,  clear,  satisfying  and  conclusive
evidence.   The  presumption  cannot  be  displaced  by  mere   balance   of
probabilities or any circumstance creating  doubt.   Even  the  evidence  of
adultery by wife which though  amounts  to  very  strong  evidence,  it,  by
itself, is not quite sufficient to  repel  this  presumption  and  will  not
justify finding of illegitimacy if husband has had access.  In  the  instant
case, admittedly the plaintiff and Defendant 4 were born  to  D  during  the
continuance of her valid marriage with B.  Their marriage was in fact  never
dissolved.  There is no evidence on record that B at any point of  time  did
not have access to D.”
                                                          (emphasis is ours)



It was, therefore, the vehement contention of the learned  counsel  for  the
appellant-wife, that the impugned order passed by the High Court  directing,
holding of a DNA test, of the respondent-husband and the male child born  to
the appellant-wife, may be set aside.
9.    All  the  judgments  relied  upon  by  the  learned  counsel  for  the
appellant were on the pointed subject of the legitimacy of  the  child  born
during the subsistence of a valid marriage.  The question  that  arises  for
consideration in the present appeal, pertains to the alleged  infidelity  of
the  appellant-wife.    It  is  not  the  husband's  desire  to  prove   the
legitimacy or illegitimacy of the child born to the appellant.  The  purpose
of the respondent is, to establish the ingredients of Section  13(1)(ii)  of
the Hindu Marriage Act, 1955, namely, that after the  solemnisation  of  the
marriage  of  the  appellant  with  the  respondent,   the   appellant   had
voluntarily engaged in sexual intercourse, with  a  person  other  than  the
respondent.  There can be no doubt, that the prayer made by  the  respondent
for conducting a DNA test of the appellant's son as  also  of  himself,  was
aimed at  the  alleged  adulterous  behaviour  of  the  appellant.   In  the
determination of the issue in hand, undoubtedly,  the  issue  of  legitimacy
will also be incidentally  involved.   Therefore,  insofar  as  the  present
controversy is concerned, Section 112 of the Indian Evidence Act  would  not
strictly come into play.  A similar issue came to  be  adjudicated  upon  by
this Court in Bhabani Prasad  Jena  vs.  Convenor  Secretary,  Orissa  State
Commission for Women and another, (2010) 8 SCC 633, wherein this Court  held
as under:
“21.  In a matter where paternity of a child is in issue before  the  court,
the use of DNA test is an extremely  delicate  and  sensitive  aspect.   One
view is that when  modern  science  gives  the  means  of  ascertaining  the
paternity of a child, there should not be any hesitation to use those  means
whenever the occasion requires.  The other view is that the  court  must  be
reluctant in the use of such scientific advances and tools which  result  in
invasion of  right  to  privacy  of  an  individual  and  may  not  only  be
prejudicial to the rights of the parties but may have devastating effect  on
the child.  Sometimes the result of such scientific test may  bastardise  an
innocent child even though his mother and her spouse  were  living  together
during the time of conception.

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.

23.   There is no conflict in  the  two  decisions  of  this  ourt,  namely,
Goutam Kundu vs. State of West Bengal  (1993)  3  SCC  418  and  Sharda  vs.
Dharmpal (2003) 4 SCC 493. In Goutam Kundu,  it  has  been  laid  down  that
courts in India cannot order blood test as  a  matter  of  course  and  such
prayers cannot be granted to have  roving  inquiry;  there  must  be  strong
prima facie case and the court must carefully examine as to  what  would  be
the consequence of ordering the blood  test.  In  Sharda,  while  concluding
that a matrimonial court has power to order a person to  undergo  a  medical
test, it was reiterated that the court should exercise such a power  if  the
applicant has a strong prime facie case and  there  is  sufficient  material
before the court.  Obviously, therefore, any  order  for  DNA  test  can  be
given by the court only if a strong prima facie case is made out for such  a
course.

24.   Insofar as the present case is concerned, we have  already  held  that
the State Commission has no authority, competence  or  power  to  order  DNA
test.  Looking to the nature of proceedings with which the  High  Court  was
concerned, it has to be held that the High Court exceeded  its  jurisdiction
in passing the impugned order. Strangely, the High Court overlooked  a  very
material aspect that the matrimonial dispute between the parties is  already
pending in the court of competent jurisdiction and  all  aspects  concerning
matrimonial dispute raised by the parties in that case shall be  adjudicated
and determined by that court. Should an issue arise before  the  matrimonial
court concerning the paternity of the child, obviously that  court  will  be
competent to pass an appropriate order at the relevant  time  in  accordance
with law.  In any view of the matter, it is  not  possible  to  sustain  the
order passed by the High Court. “
                                                          (emphasis is ours)

It is therefore apparent, that despite the consequences of a DNA test,  this
Court has concluded, that it was permissible  for  a  Court  to  permit  the
holding of a DNA test, if it  was  eminently  needed,  after  balancing  the
interests of the parties.  Recently, the issue was again considered by  this
Court in Nandlal Wasudeo Badwaik  vs.  Lata  Nandlal  Badwaik  and  another,
(2014) 2 SCC 576, wherein this Court held as under:
“15.  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 not any  access  to  his
wife at the time when the child could have been begotten.

16.   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 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 circumstances, which would give  way  to  the  other  is  a  complex
question posed before us.

17.   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.  The 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.

18.   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, a 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.

19.   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 bastardised 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.”

                                                          (emphasis is ours)

This Court has therefore clearly opined, that proof  based  on  a  DNA  test
would be sufficient to dislodge, a presumption  under  Section  112  of  the
Indian Evidence Act.
10.   It is borne from the decisions rendered  by  this  Court  in   Bhabani
Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending  on
the facts and circumstances of the case,  it  would  be  permissible  for  a
Court to direct the holding of a DNA examination, to determine the  veracity
of the allegation(s), which constitute one of  the  grounds,  on  which  the
concerned party would either succeed or lose.   There  can  be  no  dispute,
that if the direction to hold such a test can be avoided, it  should  be  so
avoided.  The reason, as already  recorded  in  various  judgments  by  this
Court, is that the legitimacy of a child should not be put to peril.
11.   The question that has to be answered in this case, is  in  respect  of
the alleged infidelity of the appellant-wife.   The  respondent-husband  has
made clear and categorical assertions in the petition  filed  by  him  under
Section 13 of the Hindu Marriage Act, alleging infidelity.  He has  gone  to
the extent of naming the person, who was the father of the male  child  born
to  the  appellant-wife.   It  is  in  the  process  of  substantiating  his
allegation  of  infidelity,  that  the  respondent-husband   had   made   an
application before the Family Court for conducting a DNA test,  which  would
establish whether or not, he  had  fathered  the  male  child  born  to  the
appellant-wife.   The respondent feels that it is only possible for  him  to
substantiate the  allegations  levelled  by  him  (of  the  appellant-wife's
infidelity) through a DNA test.  We agree with him.  In our  view,  but  for
the  DNA  test,  it  would  be  impossible  for  the  respondent-husband  to
establish and  confirm  the  assertions  made  in  the  pleadings.   We  are
therefore satisfied, that the direction issued by the  High  Court,  as  has
been extracted hereinabove, was fully justified.   DNA testing is  the  most
legitimate and scientifically perfect means, which the  husband  could  use,
to establish his assertion of infidelity.   This  should  simultaneously  be
taken as the most authentic, rightful and correct means also with the  wife,
for her to rebut the assertions  made  by  the  respondent-husband,  and  to
establish that she had not been unfaithful, adulterous or disloyal.  If  the
appellant-wife is right, she shall be proved to be so.
12.    We would, however, while upholding  the  order  passed  by  the  High
Court, consider it just and appropriate  to  record  a  caveat,  giving  the
appellant-wife liberty to comply with or disregard the order passed  by  the
High Court, requiring the holding of the DNA test. In case, she accepts  the
direction  issued  by  the  High  Court,  the  DNA   test   will   determine
conclusively the veracity of accusation levelled by the  respondent-husband,
against her. In case, she declines to comply with the  direction  issued  by
the High Court, the allegation would be determined by the  concerned  Court,
by drawing a presumption of the nature contemplated in Section  114  of  the
Indian Evidence Act, especially,  in  terms  of  illustration  (h)  thereof.
Section  114  as  also  illustration  (h),  referred  to  above,  are  being
extracted hereunder:
“114. Court may presume existence of certain facts – The Court  may  presume
the existence of any fact which it thinks likely to  have  happened,  regard
being had to the common course of natural events, human conduct  and  public
and private business, in their relation  to  the  facts  of  the  particular
case.

Illustration (h) -     That if a man refuses to answer a question  which  he
is not  compelled  to  answer  by  law,  the  answer,  if  given,  would  be
unfavourable to him.”

This course has been adopted to preserve the right of individual privacy  to
the extent possible.  Of course, without sacrificing the cause  of  justice.
By adopting the above  course,  the  issue  of  infidelity  alone  would  be
determined, without expressly disturbing the presumption contemplated  under
Section 112 of the Indian Evidence Act.   Even  though,  as  already  stated
above, undoubtedly the  issue  of  legitimacy  would  also  be  incidentally
involved.
13.   The instant appeal is disposed of in the above terms.


…........................................J.
                                       (Jagdish Singh Khehar)




…..........................................J.
                                       (R.K. Agrawal)
New Delhi;
October 15, 2014.

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