Page 1 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 30

th

of June, 1990 at

Chandrapur. Wife filed an application for

maintenance under Section 125 of the Code of Criminal

Page 2 Procedure, but the same was dismissed by the learned

Magistrate by order dated 10

th

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 20

th

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 20

th

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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Page 3 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 10

th

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 8

th

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 3

rd

January,

2011, we had agreed to allow the

petitioner’s prayer for conducting

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Page 4 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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Page 5 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 22

nd

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 24

th

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

5

Page 6 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—

6

Page 7 (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,

7

Page 8 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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Page 9 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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Page 10 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

1

Page 11 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,

1

Page 12 (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

1

Page 13 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.

1

Page 14 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

1

Page 15 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

1

Page 16 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,

1

Page 17 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.

1

Page 18 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

1

Page 19 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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