“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.
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.
