REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.

24 OF 2014 (@SPECIAL LEAVE PETITION (CRL.) No.8852 o 2008) NANDLAL !ASUDEO BAD!AI" VERSUS LATA NANDLAL BAD!AI" # ANR. ..... RESPONDENTS ..... APPELLANT

J U D $ M E N T

CHANDRAMAULI "R. 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 $handrapur. %ife filed

!th of "une, 1##! at an application for

maintenance under &ection 12' of the $ode of $riminal

Page 1

Procedure, but the same was dismissed b( the learned )agistrate b( order dated 1!th *ecember, 1## .

Thereafter, the wife resorted to a fresh proceeding under &ection 12' of the $ode of $riminal Procedure +hereinafter referred to as the ,$ode-. claiming

maintenance for herself and her daughter, inter alia, alleging that she started li/ing with her husband

from 2!th of "une, 1##0 and sta(ed with him for about two (ears and during that period got pregnant. &he

was sent for deli/er( at her parents- place where she ga/e birth to a girl child, the respondent no. 2 herein. alleged Petitioner1husband that the assertion resisted of the the wife claim that and she 2e

sta(ed with him since 2!th of "une, 1##0 is false. denied that respondent no. 2 is his daughter.

3fter

1##1, according to the husband, he had no ph(sical relationship with his wife. The learned )agistrate

accepted the plea of the wife and granted maintenance at the rate of 4s.#!!51 per month to the wife and at the rate of 4s.'!!51 per month to the daughter. The

challenge to the said order in re/ision has failed so

Page 2

also

petition

under

&ection

672

of

the

$ode,

challenging those orders. 8t is against these orders, the petitioner has preferred this special lea/e petition. Lea/e granted. Taking note of the challenge to the paternit( of the child, this $ourt b( order dated 1!th of "anuar(, 2!11 passed the following order9 :;;;;2owe/er, the petitioner1 husband had challenged the paternit( of the child and had claimed that no maintenance ought to ha/e been awarded to the child. The petitioner had also applied for referring the child for *N3 test, which was refused. 8t is against the said order of refusal that the present &pecial Lea/e was filed and the same pra(er for conducting the *N3 test was made before us. <n 7th No/ember, 2!1! we had accordingl(, directed the petitioner1husband 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 pra(er for holding of such *N3 test. &uch deposit rd ha/ing been made on "anuar(, 2!11, we had agreed to allow the petitioner-s pra(er for conducting

Page 3

*N3 test for ascertaining paternit( of the child.

the

%e ha/e since been informed b( counsel for the parties that a =orensic &cience Laborator( in Nagpur conducts the /er( same test, as has been asked for, b( the Petitioner. 3ccordingl(, we direct the petitioner1Nandlal %asudeo Badwaik and the respondent No. 11)s. Lata Nandlal Badwaik to make a >oint application to the =orensic &cience Laborator(, Nagpur, situated at "ail 4oad, *hantoli, for conducting such test. The petitioner, as well as the respondent No. 1, shall present themsel/es at the Laborator( with respondent No. 2 for the said purpose on the date to be fi?ed b( the laborator(, and, thereafter, the laborator( is directed to send the result of such test to this $ourt within four weeks thereafter. The e?penses for the test to be conducted shall be borne b( the petitioner1husband.@ 8n the light of the aforesaid order, the 4egional =orensic &cience Laborator(, Nagpur has submitted the result of *N3 testing and is opined that to appellant be the

:Nandlal biological

Aasude/ father

Badwaik of

e?cluded alias

Netra

Neha

Nandlal

Badwaik@, respondent no. 2 herein.

Page 4

4espondents,

not

being

satisfied

with

the The

aforesaid report, made a reBuest for re1test.

said pra(er of the respondents was accepted and this $ourt b( order dated 22nd of "ul(, 2!11 ga/e the

following direction9 :*espite the fact that the report of the *N3 Test conducted at the 4egional =orensic &cience Laborator(, &tate of )aharashtra, Nagpur112, indicates that the petitioner is not the biological father of the respondent No. 2, on the pra(er made on behalf of the respondents for a re1test, we are of the /iew that such a pra(er ma( be allowed ha/ing regard to the serious conseBuences of the 4eport which has been filed. 3ccordingl(, we direct that a further *N3 Test be conducted at the $entral =orensic Laborator(, )inistr( of 2ome 3ffairs, Co/ernment of 8ndia at 2(derabad and for the said purpose the parties are directed to appear before the Laborator( on 26th 3ugust, 2!11 at 11.!! a.m.@ 3s directed, the $entral submitted that the =orensic its report &cience and on

Laborator(, that basis

2(derabad opined

appellant,

:Nandlal

Page 5

%asudeo

Badwaik father

can of

be

e?cluded Neha

from Nandlal

being

the

biological

)iss

Badwaik@,

respondent no. 2 herein.

3t the outset, )r. )anish Pitale appearing for the respondents submits that the appellant ha/ing

failed to establish that he had no access to his wife at an( time when she could ha/e begotten respondent no. 2, the direction for *N3 test ought not to ha/e been gi/en. 8n /iew of the aforesaid he submits that 8n

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

support of the submission he has placed reliance on a >udgment of this $ourt in Goutam Kundu v. State of W.B., (1993) 3 SCC 418% rele/ant portions whereof

read as under9 &24. This section reBuires the part( disputing the paternit( to pro/e non1access in order to dispel the presumption. :3ccess@ and :non1access@ mean the e?istence or non1e?istence of opportunities for se?ual intercourseD it does not mean actual :cohabitation@. 2'. =rom the abo/e discussion it emergesE

Page 6

+1. That courts in 8ndia cannot order blood test as a matter of courseD +2. where/er applications are made for such pra(ers in order to ha/e ro/ing inBuir(, the pra(er for blood test cannot be entertained. + . there must be a strong prima facie case in that the husband must establish non1access in order to dispel the presumption arising under &ection 112 of the F/idence 3ct. +6. the court must carefull( e?amine as to what would be the conseBuence of ordering the blood testD whether it will ha/e the effect of branding a child as a bastard and the mother as an unchaste woman. +'. no one can be compelled to gi/e sample of blood for anal(sis. 2(. F?amined in the light of the abo/e, we find no difficult( in upholding the impugned order of the 2igh $ourt, confirming the order of the 3dditional $hief "udicial )agistrate, 3lipore in re>ecting the application for blood test;;;;;.@ Get another decision on which reliance has been placed is the decision of this $ourt in the case of Banarsi Dass v. Tee u Dutta, (!""#) 4 SCC 449,

Page 7

paragraph 1 , which is rele/ant for the purpose is Buoted below9 &1). %e ma( remember that &ection 112 of the F/idence 3ct was enacted at a time when the modern scientific ad/ancements with deo?(ribonucleic acid +*N3. as well as ribonucleic acid +4N3. tests were not e/en in contemplation of the legislature. The result of a genuine *N3 test is said to be scientificall( accurate. But e/en that is not enough to escape from the conclusi/eness of &ection 112 of the F/idence 3ct e.g. if a husband and wife were li/ing together during the time of conception but the *N3 test re/ealed that the child was not born to the husband, the conclusi/eness in law would remain irrebuttable. This ma( look hard from the point of /iew of the husband who would be compelled to bear the fatherhood of a child of which he ma( be innocent. But e/en in such a case the law leans in fa/our of the innocent child from being bastardised if his mother and her spouse were li/ing together during the time of conception. 2ence the Buestion regarding the degree of proof of non1access for rebutting the conclusi/eness must be answered in the light of what is meant b( access or non1access as delineated abo/e. +&ee Kamti Devi /. Poshi Ram, 2001 (5) SCC 311..@

Page 8

4eliance has also been placed on a decision of this $ourt in the case of B$a%ani &rasad 'ena v.

(rissa State Commission for Women, (!"1") 8 SCC )33, in which it has been held as follows9

&22. 8n our /iew, when there is apparent conflict between the right to pri/ac( of a person not to submit himself forcibl( to medical e?amination and dut( of the court to reach the truth, the court must e?ercise its discretion onl( after balancing the interests of the parties and on due consideration whether for a >ust decision in the matter, *N3 test is eminentl( needed. *N3 test in a matter relating to paternit( of a child should not be directed b( the court as a matter of course or in a routine manner, whene/er such a reBuest is made. The court has to consider di/erse aspects including presumption under &ection 112 of the F/idence 3ctD 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.@ )iss 3nagha &. *esai appearing on behalf of the appellant submits that this $ourt twice ordered for *N3 test and, hence, the Buestion as to whether this

Page 9

was

fit

case

in

which

*N3

profiling

should

or

should not ha/e been ordered is academic. substance in the submission of )s. *esai.

%e find =act of

the matter is that this $ourt not onl( once, but twice ga/e directions for *N3 test. The respondents,

in fact, had not opposed the pra(er of *N3 test when such a pra(er was being considered. 8t is onl( after

the reports of the *N3 test had been recei/ed, which was ad/erse to the respondents, that the( are

challenging it on the ground that such a test ought not to ha/e been directed. %e cannot go into the

/alidit( of the orders passed b( a coordinate Bench of this $ourt at this stage. 8t has attained

finalit(. submission

2ence, we do not find an( merit in the of the learned counsel for the

respondents.

3s regards the decision of this $ourt

in the cases of Goutam Kundu (su*ra), Banarsi Dass (su*ra) and B$a%ani &rasad 'ena (su*ra), the same

ha/e no bearing in the facts and circumstances of the case. 8n all these cases, the court was considering

as to whether facts of those cases >ustif( passing of an order for *N3 test. %hen the order for *N3 test

Page 10

has alread( been passed, at this stage, we are not concerned with this issue and we ha/e to proceed on an assumption that a /alid direction for *N3 test was gi/en.

)s. *esai submits that in /iew of the opinions, based on *N3 profiling he that appellant be is not with the the

biological

father,

cannot

fastened

liabilit( to pa( maintenance to the girl1child born to the wife. )r. Pitale, howe/er, submits that the

marriage between the parties has not been dissol/ed, and the birth of the child ha/ing taken place during the subsistence of a /alid marriage and the husband ha/ing access to the wife, conclusi/el( pro/e that the girl1child is the legitimate daughter of the

appellant. rebut the

3ccording to him, the *N3 test cannot conclusi/e presumption en/isaged under

&ection 112 of the F/idence 3ct.

3ccording to him,

respondent no. 2, therefore, has to be held to be the appellant-s legitimate daughter. 8n support of the

submission, reliance has been placed on a decision of this $ourt in the case of Kamti Devi v. &os$i +am,

Page 11

(!""1) # SCC 311, and reference has been made to paragraph 1! of the >udgment, which reads as follows9 &10. ***The result of a genuine *N3 test is said to be scientificall( accurate. But e/en that is not enough to escape from the conclusi/eness of &ection 112 of the 3ct e.g. if a husband and wife were li/ing together during the time of conception but the *N3 test re/ealed that the child was not born to the husband, the conclusi/eness in law would remain irrebuttable. This ma( look hard from the point of /iew of the husband who would be compelled to bear the fatherhood of a child of which he ma( be innocent. But e/en in such a case the law leans in fa/our of the innocent child from being bastardised if his mother and her spouse were li/ing together during the time of conception;;;.@

Before

we

proceed

to

consider

the

ri/al

submissions, we deem it necessar( to understand what e?actl( *N3 test is and ultimatel( its accurac(. 3ll li/ing beings are composed of cells which are the smallest and basic unit of life. 3n a/erage human *N3 the

bod( has trillion of cells of different sizes. +*eo?(ribonucleic 3cid., which is found in

Page 12

chromosomes of the cells of li/ing beings, is the blueprint of an indi/idual. 2uman cells contain 60

chromosomes and those 60 chromosomes contain a total of si? billion base pair in 60 duple? threads of *N3. *N3 consists of four nitrogenous guanine and bases H adenine, acid

th(mine,

c(tosine,

phosphoric

arranged in a regular structure. people possessing the same *N3

%hen two unrelated pattern ha/e been

compared, the chances of complete similarit( are 1 in ! billion to !! billion. Ci/en that the Farth-s

population is about ' billion, this test shall ha/e accurate result. 8t has been recognized b( this

$ourt in the case of result of a genuine

"+,-. D/0. (1234+) that the *N3 test is scientificall(

accurate.

8t is nobod(-s case that the result of the

*N3 test is not genuine and, therefore, we ha/e to proceed on an assumption that the result of the *N3 test is accurate. The *N3 test reports show that the appellant girl1child. is not the biological father of the

Page 13

Now we ha/e to consider as to whether the *N3 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 pro/ided under &ection 112 of the F/idence 3ct, which reads as follows9 :112. B.4-5 624.78 ,+44.+8/% 9o79:21.0/ 34oo o :/8.-.,+9;.1 The fact that an( person was born during the continuance of a /alid marriage between his mother and an( man, or within two hundred and eight( da(s after its dissolution, the mother remaining unmarried, shall be conclusi/e 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 an( time when he could ha/e been begotten.@ =rom a plain reading of the aforesaid, it is

e/ident that a child born during the continuance of a /alid marriage shall be a conclusi/e proof that the child is a legitimate child of the man to whom the lad( gi/ing birth is married. The pro/ision makes the legitimac( of the child to be a conclusi/e proof, if the conditions aforesaid are satisfied. 8t can be

denied onl( if it is shown that the parties to the

Page 14

marriage ha/e no access to each other at an( time when the child could ha/e been begotten. the present case, the wife had pleaded 2ere, in that the

husband had access to her and, in fact, the child was born in the said pleaded wedlock, that but the his husband left had the

specificall(

after

wife

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 >oined her husband. Infortunatel(, none of the courts below

ha/e gi/en an( finding with regard to this plea of the husband that he had or had not an( access to his wife at the time when the child could ha/e

been begotten. 3s stated earlier, the *N3 test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl1child.

2owe/er, at the same time, the condition precedent for in/ocation of &ection 112 of the F/idence 3ct has been established and no finding with regard to the plea of the husband that he had no access to his wife

Page 15

at the time when the child could ha/e been begotten has been recorded. born during the the 3dmittedl(, the child has been of a /alid marriage. of the

continuance pro/isions of

Therefore,

&ection

112

F/idence 3ct conclusi/el( pro/e that respondent No. 2 is the daughter of the appellant. 3t the same time,

the *N3 test reports, based on scientific anal(sis, in no uncertain terms suggest that the appellant is not the biological gi/e father. wa( to the 8n such circumstance, is a comple?

which

would

other

Buestion posed before us. %e ma( remember that &ection 112 of the F/idence 3ct was enacted at a time when the modern scientific ad/ancement and *N3 test were not e/en in

contemplation of the Legislature.

The result of *N3 3lthough

test is said to be scientificall( accurate.

&ection 112 raises a presumption of conclusi/e proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption ma(

afford legitimate means of arri/ing at an affirmati/e legal conclusion. %hile the truth or fact is known,

Page 16

in our opinion, there is no need or room for an( presumption. contrar(, the %here there is is e/idence to and the must

presumption

rebuttable

(ield to proof.

8nterest of >ustice is best ser/ed

b( ascertaining the truth and the court should be furnished with the best a/ailable science and ma( not be left to bank upon presumptions, unless science has no answer to the facts in issue. 8n our opinion, when there is a conflict between a conclusi/e proof

en/isaged under law and a proof based on scientific ad/ancement accepted b( the world communit( to be

correct, the latter must pre/ail o/er the former. %e must understand the distinction between a legal fiction and the presumption of a fact. Legal

fiction assumes e?istence of a fact which ma( not reall( e?ist. on 2owe/er presumption of a fact depends of certain circumstances. Those

satisfaction

circumstances logicall( would lead to the fact sought to be presumed. not create a &ection 112 of the F/idence 3ct does legal fiction but pro/ides for

presumption.

Page 17

The husband-s plea that he had no access to the wife when the child was begotten stands pro/ed b( the *N3 test report and in the face of it, we cannot compel child, the when appellant the to bear the fatherhood pro/e to of a

scientific

reports

the

contrar(. %e are conscious that an innocent child ma( not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in /iew of the *N3 test reports and what we ha/e obser/ed abo/e, we cannot forestall the conseBuence. 8t is den(ing the truth. hallmark of >ustice. 3s regards the authorit( of this $ourt in the case of "+,-. D/0. (S234+)% this $ourt on appreciation of e/idence came to the conclusion that the husband had no opportunit( whatsoe/er to ha/e liaison with the wife. There was no *N3 test held in the case. 8n :Truth must triumph@ is the

the said background i.e. non1access of the husband with the wife, this $ourt held that the result of *N3 test :is not enough to escape from the conclusi/eness of &ection 112 of the 3ct@. The >udgment has to be

Page 18

understood in the factual scenario of the said case. The said >udgment has not held that *N3 test is to be ignored. 8n fact, this $ourt has taken note of the %e

fact that *N3 test is scientificall( accurate.

hasten to add that in none of the cases referred to abo/e, this $ourt was confronted with a situation in which *N3 test report, in fact, was a/ailable and was in conflict with the presumption of conclusi/e proof of legitimac( of the child under &ection 112 of the F/idence 3ct. 8n /iew of what we ha/e obser/ed abo/e, these >udgments in no wa( ad/ance the case of the respondents. 8n the result, we allow this appeal, set aside the impugned >udgment so far as it directs pa(ment of maintenance to respondent no. 2. 2owe/er, we direct that the pa(ments alread( made shall not be reco/ered from the respondents. ........................J <CHANDRAMAULI "R. PRASAD=

.......................J <JA$DISH SIN$H "HEHAR= NE! DELHI JANUAR> 0'% 2014

Page 19

Page 20