REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6222-6223 OF 2010

(Arising out of SLP(C) Nos. 22905-22906 of 2009)

Bhabani Prasad Jena …Appellant

Versus

Convenor Secretary,

Orissa State Commission for Women & Anr. ...Respondents

JUDGEMENT

R.M. Lodha, J.

Leave granted.

2. Two questions arise for consideration-first, the extent

of power of the State Commission for Women constituted under

Section 3 of the Orissa (State) Commission for Women Act, 1993

(for short, ‘1993 Act’) and then, as to whether the High Court of

Orissa was justified in issuing direction for deoxyribonucleic acid

test (DNA) of the child and the appellant who, according to the

mother of the child, was its father suo motu. These questions

arise in this way. On May 15, 2007, Bhabani Prasad Jena-the

appellant and Suvashree Nayak-respondent no. 2 got married.

The certificate of marriage was issued by the Marriage Officer,

Khurda, Bhubaneswar on June 30, 2007 under Section 13 of the

Special Marriage Act, 1954 (for short, ‘1954 Act’). In less than

three months, to be precise, on August 7, 2007 the appellant filed

a petition under Section 25(iii) of the 1954 Act in the Court of

District Judge, Khurda, Bhubaneswar for a declaration that the

marriage between him and the respondent no. 2, registered on

June 30, 2007 was nullity and the said marriage has not been

consummated. In that matrimonial proceedings, the respondent

no. 2 has filed written statement and traversed the allegations

made in the petition. She also claimed permanent alimony to the

tune of Rs. 10,00,000/-. It is not necessary to refer to the

matrimonial proceedings in detail; suffice, however, to observe

that the said proceedings are pending.

3. On December 30, 2008 the respondent no. 2 filed a

complaint before Orissa (State) Commission for Women (for

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short, ‘State Commission’) alleging that she was married to the

appellant and due to torture meted out to her by the appellant and

his family members and other issues, they have separated; she

has no source of income and she was pregnant. Based on the

said complaint, the State Commission issued notices to both the

parties. On April 20, 2009, the parties appeared before the State

Commission. The appellant submitted his written reply to the

complaint and stated that marriage between the parties was

invalid due to fraud and coercion and that he has already applied

to the District Court, Khurda for declaring the marriage null and

void.

4.The Chairperson, State Commission passed an order on

May 11, 2009 issuing the following directions:

“1.Maintenance is compulsory for the petitioner,

as she has to have safe delivery and take

care of the baby.

2.Compensation amount would be minimum

50% of Gross salary amount of Sri Bhabani

Prasad Jena, Surgent. Amount to be

placed in the A/C of the mother directly by the

office of DDO (Drawl and disbursing officer).

3.Delivery expenses of Smt. Nayak will be

borne by Sri Bhabani Prasad Jena as per

actual.

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4.D.N.A. test of Smt. Nayak will be conducted

through S.P., Nawarangpur & report is sent to

OSCW for future reference.”

In the said order, it was observed that the aforesaid directions

are subject to the final order of the appropriate court.

5. The appellant challenged the aforesaid order by filing

a writ petition before the High Court of Orissa. The appellant took

the position that he has not fathered the child in the womb of

respondent no. 2 and there has been no relationship of husband

and wife since August 7, 2007 (the date of filing of the

matrimonial case before the District Judge, Khurda). It should be

noted here that a letter was sent by the respondent no. 2 to the

Chief Justice of Orissa High Court on June 9, 2009 giving the

history of relationship between her and the appellant; their

marriage; harassment meted out to her by the appellant and his

family members; advanced stage of her pregnancy and that she

was staying at Sanjivani Ma Ghar. She prayed for justice as her

delivery was expected on June 15, 2009. The vacation Judge

treated the said letter as writ petition and on June 9, 2009 itself

directed the Chief District Medical Officer, Bhubaneswer to admit

the respondent no. 2 in the Capital Hospital at the cost of the

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State and the matter was ordered to be posted after vacation

before the regular bench. It may also be noted that a day earlier

i.e., on June 8, 2009 the Division Bench passed an interim order

in the writ petition filed by the appellant staying the operation of

clauses 2 and 3 of the order passed by the State Commission

but clarified that directions regarding maintenance and DNA are

not stayed.

6. On August 7, 2009, the High Court took up both writ

petitions for consideration and passed an order directing that the

DNA of the child shall be conducted in the SCB Medical College

and Hospital, Cuttack and the appellant shall also give his blood

sample for the purpose of DNA. This order is impugned in the

present appeals by special leave.

7. The 1993 Act was enacted by the Orissa State

Legislature to constitute a State Commission for Women and to

provide for matters connected with or incidental thereto.

Functions of the Commission are specified in Section 10 which

reads thus:

“S.10.- Functions of Commission—(1) The Commission

shall perform all or any of the following functions, namely :

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(a)make indepth studies on—

(i)the economic, educational and health

situation of the women of the State,

with particular emphasis on the tribal

districts and areas which are under

developed with respect to women’s

literacy, mortality and economic

development.

(ii)condition in which women work in

factories, establishments, con-struction

sites and other similar situations,

and recommend to the State

Government on the basis of specific

reports on improving the status of

women in the said areas;

(b)compile information, form time to time, on

instances of all offences against women in

the State, or in selected areas, including

cases related to marriage and dowry, rape,

kidnapping, criminal abduction, eve-teasing,

immoral trafficking in women and cases of

medical negligence in causing delivery or

sterilization or medical intervention that

relates to child bearing or child birth;

(c)will co-ordinate with the State Cell and District

Cells for atrocities against women, if any for

mobilization of public opinion in the State as a

whole or in specific areas which would help in

speedy reporting and detection of offences of

such atrocities and mobilization or public

opinion against the offenders;

(d)receive complaints on—

(i)atrocities on women and offences

against women,

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(ii)deprivation of women of their rights

relating to minimum wages, basic

health and maternity rights,

(iii)non-compliance of policy decisions of

the Government relating to women,

(iv)rehabilitation of deserted and destitute

women and women forced into

prostitution,

(v)atrocities on women in custody,

and take up with authorities concerned

for appropriate remedial measures;

(e)assist, train and orient the non-Government

organization in the State in legal counseling

of poor women and enabling such women to

get legal aid;

(f)inspect or cause to be inspected, a jail,

remand home, women’s institution or other

place of custody where women are kept as

prisoners or otherwise and take up with the

concerned authorities for remedial action, if

found necessary;

(g)perform functions in relation to any other

matter which may be referred to it by the

State Government.

(2) The State Government shall cause all the

recommendations or reports, or any part thereof, as may

be presented to it by the Commission under Sub-section

(1), which relate to any matter with which the State

Government is concerned, to be laid before the

Legislature of the State alongwith a memorandum

explaining the action taken or proposed to be taken on the

recommendations of the Commission and the reasons for

the non-acceptance, if any, of such recommendations.

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(3)The Commission shall, while investigating

any matter referred to in Clause (a) or Clause (d) of Sub-

section(1), have all the powers of a Civil Court trying a suit

and, in particular, in respect of the following matters,

namely :

(a)summoning and enforcing the attendance of

any person from any part of India and

examining him on oath;

(b)requiring the discovery and production of any

document;

(c)receiving evidence on affidavits;

(d)requisitioning any public record or copy

thereof from any Court or office;

(e)issuing commissions for the examination of

witness and documents; and

(f)any other matter which may be prescribed.”

8. It would be seen from Section 10 of the 1993 Act that

the State Commission has been authorized to take up studies in

respect of economic, educational and health situation of the

women of the State and also the working conditions of women in

the factories, establishments, construction sites and make its

recommendations to the State Government. The State

Commission is empowered to compile information in respect of

the offences against women and to coordinate with the State Cell

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and District Cells for atrocities against women. Further, the State

Commission is competent to receive complaints in respect of the

matters specified in Section 10(1)(d) and take up the grievances

raised in the complaint/s with the concerned authorities for

appropriate remedial measures. The State Commission is also

given role of assisting, training and orienting the non-Government

organization in the State in legal counseling of poor women and

enabling such women to get legal aid. Under clause (f) of Section

10(1), the State Commission is authorized to inspect or cause to

be inspected, a jail, remand home, women’s institution or other

place of custody where women are kept as prisoners or otherwise

and take up with the concerned authorities these matters for

remedial action. In other words, the State Commission is broadly

assigned to take up studies on issues of economic, educational

and healthcare that may help in overall development of the

women of the State; gather statistics concerning offences against

women; probe into the complaints relating to atrocities on

women, deprivation of women of their rights in respect of

minimum wages, basic health, maternity rights, etc. and upon

ascertainment of facts take up the matter with the concerned

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authorities for remedial measures; help women in distress as a

friend, philosopher and guide in enforcement of their legal rights.

However, no power or authority has been given to the State

Commission to adjudicate or determine the rights of the parties.

Mr. Ranjan Mukherjee, learned counsel for respondent no. 2

submitted that once a power has been given to the State

Commission to receive complaints including the matter

concerning deprivation of women of their rights, it is implied that

the State Commission is authorized to decide these complaints.

We are afraid, no such implied power can be read into Section

10(1)(d) as suggested by the learned counsel. The provision

contained in Section 10(1)(d) is expressly clear that the State

Commission may receive complaints in relation to the matters

specified therein and on receipt of such complaints take up the

matter with the authorities concerned for appropriate remedial

measures. The 1993 Act has not entrusted the State

Commission with the power to take up the role of a court or an

adjudicatory tribunal and determine the rights of the parties. The

State Commission is not a tribunal discharging the functions of a

judicial character or a court. Learned counsel for respondent no.

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2 then referred to Section 10(3) and submitted that the State

Commission has been conferred with all the powers of a Civil

Court trying a suit. We are afraid, this is not at all proper reading

of Section 10(3). The expression, ‘have all the powers of a

Civil Court’ in Section 10(3) is qualified by the following words, ‘in

respect of the following matters’. That is to say, the State

Commission has powers of Civil Court trying a suit for the matters

specified in clauses (a) to (f) thereof and not for other purposes.

It is clear to us that the Legislature has not gone so far as to give

jurisdiction to the State Commission to make an order such as the

one that has been made. From whatever angle we may examine

the validity of the directions given by the State Commission in its

order dated May 11, 2009, it appears to us that the said order

was outside the jurisdiction, power or competence of the State

Commission. It was an order which the State Commission had

no competence to make and, therefore, a void order. The High

Court instead of correcting that order went a step further and

directed that DNA of the child as well as the appellant shall be

conducted.

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9. Whether such a direction could be given by the High

Court? Before we answer this question, we shall notice few

decisions of this Court dealing with the power of the Court in

directing DNA. In Goutam Kundu v. State of West Bengal and

Anr.

1

, this Court was concerned with a matter arising out of

maintenance for child claimed by the wife. The husband disputed

the paternity of the child and prayed for blood group test of the

child to prove that he was not the father of the child. This Court

referred to Section 4 and Section 112 of the Evidence Act and

also the decisions of English and American Courts and some

authoritative texts including the following statement made in

Rayden’s Law and Practice in Divorce and Family Matters

(1983), Vol. I, p. 1054 which reads thus:

“Medical Science is able to analyse the blood of

individuals into definite groups; and by

examining the blood of a given man and a child

to determine whether the man could or could not

be the father. Blood tests cannot show positively

that any man is father, but they can show

positively that a given man could or could not be

the father. It is obviously the latter aspect that

proves most valuable in determining paternity,

that is, the exclusion aspect, for once it is

determined that a man could not be the father,

he is thereby automatically excluded from

considerations of paternity. When a man is not

1

(1993) 3 SCC 418

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the father of a child, it has been said that there is

at least a 70 per cent chance that if blood tests

are taken they will show positively he is not the

father, and in some cases the chance is even

higher; between two given men who have had

sexual intercourse with the mother at the time of

conception, both of whom undergo blood tests, it

has likewise been said that there is a 90 per cent

chance that the tests will show that one of them

is not the father with the irresistible inference

that the other is the father.”

This Court then finally concluded, thus :

“(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.”

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10. In Sharda v. Dharmpal

2

, a three-Judge Bench was

concerned with the question whether a party to the divorce

proceedings can be compelled to a medical examination. That

case arose out of an application for divorce filed by the husband

against the wife under Section 13(1)(iii) of the Hindu Marriage

Act, 1955. In other words, the husband claimed divorce on the

ground that wife has been incurably of unsound mind or has

been suffering from mental disorder. The Court observed,

“Goutam Kundu

is, therefore, not an authority for the proposition

that under no circumstances the Court can direct that blood tests

be conducted. It, having regard to the future of the child, has, of

course, sounded a note of caution as regards mechanical passing

of such order. In some other jurisdictions, it has been held that

such directions should ordinarily be made if it is in the interest of

the child.” While dealing with the aspect as to whether

subjecting a person to a medical test is violative of Article 21 of

the Constitution of India, it was stated that the right to privacy in

terms of Article 21 of the Constitution is not an absolute right.

This Court summed up conclusions thus :

2

(2003) 4 SCC 493

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“1. A matrimonial court has the power to order a

person to undergo medical test.

2. Passing of such an order by the court would not

be in violation of the right to personal liberty under

Article 21 of the Indian Constitution.

3. However, the Court should exercise such a

power if the applicant has a strong prima facie

case and there is sufficient material before the

Court. If despite the order of the court, the

respondent refuses to submit himself to medical

examination, the court will be entitled to draw an

adverse inference against him.”

11. In Banarsi Dass v. Teeku Dutta & Anr.

3

, this Court

was concerned with a case arising out of succession certificate.

The allegation was that Teeku Dutta was not the daughter of the

deceased. An application was made to subject Teeku Dutta to

DNA test. The High Court held that trial court being a

testamentary court, the parties should be left to prove their

respective cases on the basis of the evidence produced during

trial, rather than creating evidence by directing DNA test. When

the matter reached this Court, few decisions of this Court,

particularly, Goutam Kundu

1

was noticed and it was held that

even the result of a genuine DNA test may not be enough to

3

(2005) 4 SCC 449

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escape from the conclusiveness of Section 112 of the Evidence

Act like a case where a husband and wife were living together

during the time of conception. This is what this Court said :

“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.”

It was emphasized that DNA test is not to be directed as a matter

of routine and only in deserving cases such a direction can be

given.

12. Recently, in the case of Ramkanya Bai v. Bharatram

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decided by the Bench of which one of us, R.M. Lodha, J. was the

member, the order of the High Court directing DNA of the child at

4

(2010) 1 SCC 85

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the instance of the husband was set aside and it was held that

the High Court was not justified in allowing the application for

grant of DNA of the child on the ground that there will be

possibility of reunion of the parties if such DNA was conducted

and if it was found from the outcome of the DNA that the son was

born out of the wedlock of the parties.

13. In a matter where paternity of a child is in issue before

the court, the use of DNA is an extremely delicate and sensitive

aspect. One view is that when modern science gives 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 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. 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

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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 is

eminently needed. DNA 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.

14. There is no conflict in the two decisions of this Court,

namely, Goutam Kundu

1

and Sharda

2

. In Goutam Kundu

1

, 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 court

must carefully examine as to what would be the consequence of

ordering the blood test. In the case of Sharda

2

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 prima facie case and there is

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sufficient material before the court. Obviously, therefore, any

order for DNA can be given by the court only if a strong prima

facie case is made out for such a course. Insofar as the present

case is concerned, we have already held that the State

Commission has no authority, competence or power to order

DNA. Looking to the nature of proceedings with which the High

Court was concerned, it has to be held that High Court

exceeded its jurisdiction in passing the impugned order.

Strangely, the High Court over-looked 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.

15. Consequently, the appeals are allowed; the order of

the High Court dated August 7, 2009 and the order of the Orissa

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State Commission for Women dated May 11, 2009 are set aside.

WP(C) No. 8725 of 2009 and WP (C) No. 8308 of 2009 pending

before the High Court stand disposed of in view of this order.

We clarify that our order shall not preclude the respondent no. 2

from claiming maintenance or any other order of financial support

against the appellant in appropriate proceedings from the court of

competent jurisdiction or in the petition filed by the appellant

before the District Judge, Khurda, Bhubaneswar. Obviously the

appellant shall be at liberty to contest the claim of respondent no.

2 on all available grounds and the concerned Court shall consider

and determine such claim in accordance with law on its own

merits. The parties shall bear their own costs.

……………………J

(Aftab Alam)

…….……………..J

(R. M. Lodha)

New Delhi

August 3, 2010.

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