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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO.24 OF 2014 (@SPECIAL LEAVE PETITION (CRL.) No.8852 of 2008)

NANDLAL WASUDEO BADWAIK   ..... APPELLANT

VERSUS

LATA NANDLAL BADWAIK & ANR.     ..... RESPONDENTS   

J U D G M E N T  

CHANDRAMAULI KR. PRASAD, J.

Petitioner  happens  to  be  the  husband  of  

respondent no. 1, Lata Nandlal Badwaik and alleged to  

be the father of girl child Netra alias Neha Nandlal  

Badwaik,  respondent  no.  2,  herein.   The  marriage  

between them was solemnized on 30th of June, 1990 at  

Chandrapur.   Wife  filed  an  application  for  

maintenance under Section 125 of the Code of Criminal

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Procedure, but the same was dismissed by the learned  

Magistrate  by  order  dated  10th December,  1993.  

Thereafter, the wife resorted to a fresh proceeding  

under Section 125 of the Code of Criminal Procedure  

(hereinafter  referred  to  as  the  ‘Code’)  claiming  

maintenance for herself and her daughter, inter alia,  

alleging  that  she  started  living  with  her  husband  

from 20th of June, 1996 and stayed with him for about  

two years and during that period got pregnant.  She  

was sent for delivery at her parents’ place where she  

gave  birth  to  a  girl  child,  the  respondent  no.  2  

herein.  Petitioner-husband  resisted  the  claim  and  

alleged  that  the  assertion  of  the  wife  that  she  

stayed with him since 20th of June, 1996 is false.  He  

denied that respondent no. 2 is his daughter.  After  

1991, according to the husband, he had no physical  

relationship with his wife.  The learned Magistrate  

accepted the plea of the wife and granted maintenance  

at the rate of Rs.900/- per month to the wife and at  

the rate of Rs.500/- per month to the daughter.  The  

challenge to the said order in revision has failed so  

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also  a  petition  under  Section  482  of  the  Code,  

challenging those orders.

It is against these orders, the petitioner has  

preferred this special leave petition.   

Leave granted.

Taking note of the challenge to the paternity of  

the child, this Court by order dated 10th of January,  

2011 passed the following order:

“…………However,  the  petitioner- husband  had  challenged  the  paternity  of  the  child  and  had  claimed that no maintenance ought  to have been awarded to the child.  The  petitioner  had  also  applied  for  referring  the  child  for  DNA  test, which was refused.  It is  against the said order of refusal  that the present Special Leave was  filed  and  the  same  prayer  for  conducting the DNA test was made  before us.  On 8th November, 2010  we had accordingly, directed the  petitioner-husband to deposit all  dues, both arrear and current, in  respect of the maintenance awarded  to the wife and child to enable us  to consider the prayer for holding  of such DNA test.  Such deposit  having  been  made  on  3rd January,  2011, we had agreed to allow the  petitioner’s prayer for conducting  

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DNA  test  for  ascertaining  the  paternity of the child.

We have since been informed by  counsel  for  the  parties  that  a  Forensic  Science  Laboratory  in  Nagpur  conducts  the  very  same  test, as has been asked for, by  the Petitioner.  Accordingly, we  direct  the  petitioner-Nandlal  Wasudeo Badwaik and the respondent  No. 1-Ms. Lata Nandlal Badwaik to  make  a  joint  application  to  the  Forensic  Science  Laboratory,  Nagpur,  situated  at  Jail  Road,  Dhantoli,  for  conducting  such  test.  The petitioner, as well as  the  respondent  No.  1,  shall  present  themselves  at  the  Laboratory with respondent No. 2  for the said purpose on the date  to  be  fixed  by  the  laboratory,  and, thereafter, the laboratory is  directed  to  send  the  result  of  such  test  to  this  Court  within  four  weeks  thereafter.   The  expenses  for  the  test  to  be  conducted  shall  be  borne  by  the  petitioner-husband.”

In the light of the aforesaid order, the Regional  

Forensic Science Laboratory, Nagpur has submitted the  

result  of  DNA  testing  and  opined  that  appellant  

“Nandlal  Vasudev  Badwaik  is  excluded  to  be  the  

biological  father  of  Netra  alias  Neha  Nandlal  

Badwaik”, respondent no. 2 herein.

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Respondents,  not  being  satisfied  with  the  

aforesaid report, made a request for re-test.  The  

said prayer of the respondents was accepted and this  

Court  by  order  dated  22nd of  July,  2011  gave  the  

following direction:

“Despite the fact that the report  of the DNA Test conducted at the  Regional  Forensic  Science  Laboratory, State of Maharashtra,  Nagpur-12,  indicates  that  the  petitioner is not the biological  father of the respondent No. 2, on  the prayer made on behalf of the  respondents for a re-test, we are  of the view that such a prayer may  be  allowed  having  regard  to  the  serious consequences of the Report  which has been filed.

Accordingly,  we  direct  that  a  further DNA Test be conducted at  the  Central  Forensic  Laboratory,  Ministry  of  Home  Affairs,  Government of India at Hyderabad  and  for  the  said  purpose  the  parties  are  directed  to  appear  before  the  Laboratory  on  24th  August, 2011 at 11.00 a.m.”

As  directed,  the  Central  Forensic  Science  

Laboratory,  Hyderabad  submitted  its  report  and  on  

that  basis  opined  that  the  appellant,  “Nandlal  

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Wasudeo  Badwaik  can  be  excluded  from  being  the  

biological  father  of  Miss  Neha  Nandlal  Badwaik”,  

respondent no. 2 herein.

At the outset, Mr. Manish Pitale appearing for  

the  respondents  submits  that  the  appellant  having  

failed to establish that he had no access to his wife  

at any time when she could have begotten respondent  

no. 2, the direction for DNA test ought not to have  

been given.  In view of the aforesaid he submits that  

the result of such a test is fit to be ignored.  In  

support of the submission he has placed reliance on a  

judgment of this Court in  Goutam Kundu v. State of  

W.B.,  (1993)  3  SCC  418,  relevant  portions  whereof  read as under:

“24. This  section  requires  the  party disputing the paternity to  prove  non-access  in  order  to  dispel  the  presumption.  “Access”  and  “non-access”  mean  the  existence  or  non-existence  of  opportunities  for  sexual  intercourse;  it  does  not  mean  actual “cohabitation”.

26. From the above discussion it  emerges—

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(1)  That  courts  in  India  cannot  order blood test as a matter of  course;

(2) wherever applications are made  for such prayers in order to have  roving  inquiry,  the  prayer  for  blood test cannot be entertained.

(3) there must be a strong prima  facie  case  in  that  the  husband  must establish non-access in order  to dispel the presumption arising  under Section 112 of the Evidence  Act.

(4)  the  court  must  carefully  examine as to what would be the  consequence of ordering the blood  test;  whether  it  will  have  the  effect of branding a child as a  bastard  and  the  mother  as  an  unchaste woman.

(5)  no  one  can  be  compelled  to  give sample of blood for analysis.

27. Examined in the light of the  above,  we  find  no  difficulty  in  upholding  the  impugned  order  of  the  High  Court,  confirming  the  order  of  the  Additional  Chief  Judicial  Magistrate,  Alipore  in  rejecting  the  application  for  blood test…………….”

Yet another decision on which reliance has been  

placed is the decision of this Court in the case of  

Banarsi  Dass  v.  Teeku  Dutta,  (2005)  4  SCC  449,  

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paragraph 13, which is relevant for the purpose is  

quoted below:

“13. We may remember that Section  112  of  the  Evidence  Act  was  enacted at a time when the modern  scientific  advancements  with  deoxyribonucleic  acid  (DNA)  as  well  as  ribonucleic  acid  (RNA)  tests  were  not  even  in  contemplation of the legislature.  The result of a genuine DNA test  is  said  to  be  scientifically  accurate.  But  even  that  is  not  enough  to  escape  from  the  conclusiveness of Section 112 of  the Evidence Act e.g. if a husband  and  wife  were  living  together  during the time of conception but  the  DNA  test  revealed  that  the  child was not born to the husband,  the  conclusiveness  in  law  would  remain irrebuttable. This may look  hard from the point of view of the  husband who would be compelled to  bear the fatherhood of a child of  which he may be innocent. But even  in such a case the law leans in  favour of the innocent child from  being  bastardised  if  his  mother  and  her  spouse  were  living  together  during  the  time  of  conception.  Hence  the  question  regarding the degree of proof of  non-access  for  rebutting  the  conclusiveness must be answered in  the  light  of  what  is  meant  by  access or non-access as delineated  above.  (See  Kamti  Devi v.  Poshi  Ram, 2001 (5) SCC 311.)”

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Reliance has also been placed on a decision of  

this  Court  in  the  case  of  Bhabani  Prasad  Jena  v.  

Orissa State Commission for Women, (2010) 8 SCC 633,  

in which it has been held as follows:

“22. In our view, when there is  apparent  conflict  between  the  right to privacy of a person not  to  submit  himself  forcibly  to  medical  examination  and  duty  of  the court to reach the truth, the  court must exercise its discretion  only after balancing the interests  of  the  parties  and  on  due  consideration whether for a just  decision in the matter, DNA test  is eminently needed. DNA test in a  matter relating to paternity of a  child  should  not  be  directed  by  the court as a matter of course or  in a routine manner, whenever such  a request is made. The court has  to  consider  diverse  aspects  including  presumption  under  Section 112 of the Evidence Act;  pros and cons of such order and  the test of “eminent need” whether  it is not possible for the court  to reach the truth without use of  such test.”

Miss Anagha S. Desai appearing on behalf of the  

appellant submits that this Court twice ordered for  

DNA test and, hence, the question as to whether this  

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was  a  fit  case  in  which  DNA  profiling  should  or  

should not have been ordered is academic.  We find  

substance in the submission of Ms. Desai.  Fact of  

the  matter  is  that  this  Court  not  only  once,  but  

twice gave directions for DNA test.  The respondents,  

in fact, had not opposed the prayer of DNA test when  

such a prayer was being considered.  It is only after  

the reports of the DNA test had been received, which  

was  adverse  to  the  respondents,  that  they  are  

challenging it on the ground that such a test ought  

not to have been directed.  We cannot go into the  

validity of the orders passed by a coordinate Bench  

of  this  Court  at  this  stage.   It  has  attained  

finality.  Hence, we do not find any merit in the  

submission  of  the  learned  counsel  for  the  

respondents.  As regards the decision of this Court  

in the cases of  Goutam Kundu (supra), Banarsi Dass  

(supra)  and  Bhabani  Prasad  Jena  (supra),  the  same  

have no bearing in the facts and circumstances of the  

case.  In all these cases, the court was considering  

as to whether facts of those cases justify passing of  

an order for DNA test.  When the order for DNA test  

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has already been passed, at this stage, we are not  

concerned with this issue and we have to proceed on  

an assumption that a valid direction for DNA test was  

given.  

Ms. Desai submits that in view of the opinions,  

based  on  DNA  profiling  that  appellant  is  not  the  

biological  father,  he  cannot  be  fastened  with  the  

liability to pay maintenance to the girl-child born  

to the wife.  Mr. Pitale,  however, submits that the  

marriage between the parties has not been dissolved,  

and the birth of the child having taken place during  

the subsistence of a valid marriage and the husband  

having access to the wife, conclusively prove that  

the  girl-child  is  the  legitimate  daughter  of  the  

appellant.  According to him, the DNA test cannot  

rebut  the  conclusive  presumption  envisaged  under  

Section 112 of the Evidence Act.  According to him,  

respondent no. 2, therefore, has to be held to be the  

appellant’s legitimate daughter.  In support of the  

submission, reliance has been placed on a decision of  

this Court in the case of  Kamti Devi v. Poshi Ram,  

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(2001)  5  SCC  311, and  reference  has  been  made  to  

paragraph 10 of the judgment, which reads as follows:

“10.  ………The  result  of  a  genuine  DNA  test  is  said  to  be  scientifically accurate. But even  that is not enough to escape from  the conclusiveness of Section 112  of the Act e.g. if a husband and  wife were living together during  the time of conception but the DNA  test revealed that the child was  not  born  to  the  husband,  the  conclusiveness in law would remain  irrebuttable. This may look hard  from  the  point  of  view  of  the  husband who would be compelled to  bear the fatherhood of a child of  which he may be innocent. But even  in such a case the law leans in  favour of the innocent child from  being  bastardised  if  his  mother  and  her  spouse  were  living  together  during  the  time  of  conception……….”

Before  we  proceed  to  consider  the  rival  

submissions, we deem it necessary to understand what  

exactly DNA test is and ultimately its accuracy. All  

living  beings  are  composed  of  cells  which  are  the  

smallest and basic unit of life.  An average human  

body has trillion of cells of different sizes.  DNA  

(Deoxyribonucleic  Acid),  which  is  found  in  the  

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chromosomes  of  the  cells  of  living  beings,  is  the  

blueprint of an individual.  Human cells contain 46  

chromosomes and those 46 chromosomes contain a total  

of six billion base pair in 46 duplex threads of DNA.  

DNA  consists  of  four  nitrogenous  bases  –  adenine,  

thymine,  cytosine,  guanine  and  phosphoric  acid  

arranged in a regular structure.   When two unrelated  

people  possessing  the  same  DNA  pattern  have  been  

compared, the chances of complete similarity are 1 in  

30 billion to 300 billion.  Given that the Earth’s  

population is about 5 billion, this test shall have  

accurate  result.   It  has  been  recognized  by  this  

Court  in  the  case  of  Kamti  Devi  (supra) that  the  result  of  a  genuine  DNA  test  is  scientifically  

accurate.  It is nobody’s case that the result of the  

DNA test is not genuine and, therefore, we have to  

proceed on an assumption that the result of the DNA  

test is accurate. The DNA test reports show that the  

appellant  is  not  the  biological  father  of  the  

girl-child.

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Now we have to consider as to whether the DNA test  

would be sufficient to hold that the appellant is not  

the  biological  father  of  respondent  no.  2,  in  the  

face of what has been provided under Section 112 of  

the Evidence Act, which reads as follows:

“112.  Birth  during  marriage,  conclusive proof of legitimacy.- The  fact that any person was born during  the  continuance  of  a  valid  marriage  between  his  mother  and  any  man,  or  within  two  hundred  and  eighty  days  after  its  dissolution,  the  mother  remaining  unmarried,  shall  be  conclusive  proof  that  he  is  the  legitimate son of that man, unless it  can be shown that the parties to the  marriage had no access to each other  at any time when he could have been  begotten.”

From  a  plain  reading  of  the  aforesaid,  it  is  

evident that a child born during the continuance of a  

valid marriage shall be a conclusive proof that the  

child is a legitimate child of the man to whom the  

lady giving birth is married. The provision makes the  

legitimacy of the child to be a conclusive proof, if  

the conditions aforesaid are satisfied.  It can be  

denied only if it is shown that the parties to the  

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marriage have no access to each other at any time  

when the child could have been begotten.  Here, in  

the  present  case,  the  wife  had  pleaded  that  the  

husband had access to her and, in fact, the child was  

born  in  the  said  wedlock,  but  the  husband  had  

specifically  pleaded  that  after  his  wife  left  the  

matrimonial home, she did not return and thereafter,  

he had no access to her.  The wife has admitted that  

she had left the matrimonial home but again joined  

her husband.  Unfortunately, none of the courts below  

have given any finding with regard to this plea of  

the husband that he had or had not any access to his  

wife  at  the  time  when  the  child  could  have  

been begotten.   

As stated earlier, the DNA test is an accurate  

test and on that basis it is clear that the appellant  

is  not  the  biological  father  of  the  girl-child.  

However, at the same time, the condition precedent  

for invocation of Section 112 of the Evidence Act has  

been established and no finding with regard to the  

plea of the husband that he had no access to his wife  

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at the time when the child could have been begotten  

has been recorded.  Admittedly, the child has been  

born  during  the  continuance  of  a  valid  marriage.  

Therefore,  the  provisions  of  Section  112  of  the  

Evidence Act conclusively prove that respondent No. 2  

is the daughter of the appellant.  At the same time,  

the DNA test reports, based on scientific analysis,  

in no uncertain terms suggest that the appellant is  

not  the  biological  father.   In  such  circumstance,  

which  would  give  way  to  the  other  is  a  complex  

question posed before us.

We may remember that Section 112 of the Evidence  

Act was enacted at a time when the modern scientific  

advancement  and  DNA  test  were  not  even  in  

contemplation of the Legislature.  The result of DNA  

test is said to be scientifically accurate.  Although  

Section 112 raises a presumption of conclusive proof  

on satisfaction of the conditions enumerated therein  

but  the  same  is  rebuttable.  The  presumption  may  

afford legitimate means of arriving at an affirmative  

legal conclusion.  While the truth or fact is known,  

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in our opinion, there is no need or room for any  

presumption.   Where  there  is  evidence  to  the  

contrary,  the  presumption  is  rebuttable  and  must  

yield to proof.  Interest of justice is best served  

by  ascertaining  the  truth  and  the  court  should  be  

furnished with the best available science and may not  

be left to bank upon presumptions, unless science has  

no answer to the facts in issue. In our opinion, when  

there  is  a  conflict  between  a  conclusive  proof  

envisaged under law and a proof based on scientific  

advancement  accepted  by  the  world  community  to  be  

correct, the latter must prevail over the former.

We must understand the distinction between a legal  

fiction  and  the  presumption  of  a  fact.     Legal  

fiction  assumes  existence  of  a  fact  which  may  not  

really exist.  However presumption of a fact depends  

on  satisfaction  of  certain  circumstances.  Those  

circumstances logically would lead to the fact sought  

to be presumed.  Section 112 of the Evidence Act does  

not  create  a  legal  fiction  but  provides  for  

presumption.  

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The husband’s plea that he had no access to the  

wife when the child was begotten stands proved by the  

DNA test report and in the face of it, we cannot  

compel  the  appellant  to  bear  the  fatherhood  of  a  

child,  when  the  scientific  reports  prove  to  the  

contrary. We are conscious that an innocent child may  

not be bastardized as the marriage between her mother  

and father was subsisting at the time of her birth,  

but in view of the DNA test reports and what we have  

observed above, we cannot forestall the consequence.  

It is denying the truth.  “Truth must triumph” is the  

hallmark of justice.

As regards the authority of this Court in the case  

of Kamti Devi (Supra), this Court on appreciation of  evidence came to the conclusion that the husband had  

no opportunity whatsoever to have liaison with the  

wife.  There was no DNA test held in the case.  In  

the said background i.e. non-access of the husband  

with the wife, this Court held that the result of DNA  

test “is not enough to escape from the conclusiveness  

of Section 112 of the Act”.  The judgment has to be  

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understood in the factual scenario of the said case.  

The said judgment has not held that DNA test is to be  

ignored.  In fact, this Court has taken note of the  

fact that DNA test is scientifically accurate.  We  

hasten to add that in none of the cases referred to  

above, this Court was confronted with a situation in  

which DNA test report, in fact, was available and was  

in conflict with the presumption of conclusive proof  

of legitimacy of the child under Section 112 of the  

Evidence Act. In view of what we have observed above,  

these judgments in no way advance the case of the  

respondents.

In the result, we allow this appeal, set aside the  

impugned  judgment  so  far  as  it  directs  payment  of  

maintenance to respondent no. 2. However, we direct  

that the payments already made shall not be recovered  

from the respondents.

 ........................J      [CHANDRAMAULI KR. PRASAD]

  .......................J          [JAGDISH SINGH KHEHAR]

NEW DELHI JANUARY 06, 2014  

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