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1 “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.

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2 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

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3 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

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4 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

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5 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

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6 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

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7 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.

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8 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

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9 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

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10 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

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11 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

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12 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),

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13 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

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14 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.

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15

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

…..........................................J. (R.K. Agrawal)

New Delhi; October 15, 2014.