DNA Testing is the Most Legitimate and Scientifically Perfect Means

8/10/2019 DNA Testing is the Most Legitimate and Scientifically Perfect Means

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REPORTABLE

IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9744 OF 2014(Ar!"# $%& $' SLP(C N$.)*94 $' 201+

Dipanwita Roy . Appellant

versus

Ronobroto Roy . Respondent

J U D , M E N T

J-#!/ S"#/ //-r J.

1. The petitioner-wife Dipanwita Roy and the respondent-husband Ronobroto

Roy, were married at Calcutta. Their marriae was reistered on !."."##$. The

present controversy emeres from a petition filed under %ection 1$ of the &indu

'arriae Act, 1!(( )hereinafter referred to as the *Act*+ by the respondent, inter

alia, seein dissolution of the marriae solemnised between the petitioner-wife

and the respondent-husband, on "(.1."##$.

". ne of the rounds for seein divorce was, based on the alleed

adulterous life style of the petitioner-wife. or his above assertion, the

respondent-husband made the followin alleations in pararaphs "$ to "( of his

petition/

"$. That since "".#!."##0 the petitioner never lived with therespondent and did not share bed at all. n a very few occasion since

then the respondent came to the petitioner*s place of residence tocollect her thins and lived there aainst the will of all to avoid publicscandal the petitioner did not turn the respondent house on thoseoccasion.


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". That by her e2travaant life style the respondent has incurredheavy debts. %ince she has not disclosed her present address to banand has only iven the address of the petitioner. The men andcollection aents of different bans are fre3uently visitin the

petitioner*s house and harassin the petitioner. They are looin forthe respondent for recovery of their dues. 4otice from Attorney irmsfor recovery of due from the respondent and her credit card statementsshowin heavy debts are bein sent to the petitioner*s address. Therespondent purchased one car in "##0 with the petitioner*s uncle, %hri%ubrata Roy Chowdhary as the uarantor. The respondent has failed topay the installments reularly.

"(. That the petiitoner states that the respondent has one astray.%he is leadin a fast life and has lived in e2tra marital relationship with

the said 'r. Deven %hah, a well to do person who too is a carrierentlemen and has iven birth to a child as a result of her cohabitationwith %hri Deven %hah. 5t is reported that the respondent has ivenbirth to a baby very recently. The respondent is presently livin at theaddress as mentioned in the cause title of the plaint.6

)emphasis is ours+

$. The above factual position was contested by the petitioner-wife in her reply

wherein she, inter alia, submitted as under/

7That the statements made in pararaph 4os. ( and 8 of the plaint areadmitted by the respondent to the e2tent that the dauhter namely79iyas6 is residin in the custody of the respondent*s mother with thearranement of the petitioner and as a result of which the petitionerused to come at his mother in law*s place and spendin days thereinand the respondent used to spend time with him and carryin on theirmatrimonial obliation which includes co-habitation.

That the statements made in pararaph 4o.0 in the plaint is absolutely

false, concocted, untrue, frivolous, ve2atious and made with thepurpose of harassin the respondent and the petitioner is call upon toprove the alleation intoto. 5t is cateorically denied by the respondentthat she was a selfish person, very much concern about her own selfand own affairs and without any concern for the petitioner as alleed.The respondent further denied that she was self willed, arroant andshort tempered and she used to fly into rae every now and then oversmall matter and used to 3uarrel with the petitioner and his mother asalleed. The respondent further denied and disputes that she used too out every now and then accordin to her whims without informin

either the petitioner and his mother as alleed. That the respondentfurther denies and disputes that she failed to disclose her whereaboutsand used to stay out for lon hours as alleed. The respondent furtherdenies and disputes that she does not care little for the feelins of


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either the petitioner or his mother as alleed. The respondent furtherdenies and disputes that she ot e2tremely irritated and used to 3uarrelwith the petitioner whenever the petitioner tried to spea to her asalleed.

That the statements made in pararaph "$ in the plaint are absolutelyimainative, concocted and false and the same are bein made for thepurpose of this case. The respondent denies and disputes in itspresent form the statement they lead an e2travaant life style andthereby she incurred debts as alleed therein and the respondentprovided her matrimonial house address to the ban as because thesame is her permanent address after her marriae. The respondentdenies and disputes the statement that men and collection aent ofdifferent bans were fre3uently visitin the petitioner*s house and

harassin the petitioner and they are looin for the respondent forrecovery of dues as alleed therein. The respondent is to state andsubmit that many a times at the behest of the petitioner she used topurchase many thins for him and spent lot of money while attendindinner and lunch at clubs and restaurants with the petitioner. Therespondent is to further state and submit on repeated insistence of thepetitioner the respondent purchased a car on credit for accommodatinherself smooth :ourney at her office wor as well as for other placesand in such event the petitioner promised that he would pay (#; of the


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result of which a male chid was born. At this stae raisin 3uestionreardin birth of the child would actually put adverse effect not onlytowards the family but also towards of the mind of the tender aedchild and this unscrupulous attitude is actually oes aainst the

concept of welfare of the child.6 )emphasis is ours+

A perusal of the written statement filed on behalf of the petitioner-wife reveals

that the petitioner-wife e2pressly asserted the factum of cohabitation durin the

subsistence of their marriae, and also denied the accusations levelled by the

respondent-husband of her e2tra marital relationship, as absolutely false,

concocted, untrue, frivolous and ve2atious.

. 5n 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 ".0."#11 seein a D4A test of

himself )the respondent-husband+ and the male child born to the petitioner-wife.

The purpose seems to be, that if the D4A e2amination reflected, that the male

child born to the petitioner-wife, was not the child of the respondent-husband, the

alleations made by the respondent-husband in pararaphs "$ to "( of the

petition, would stand substantiated. The petitioner-wife filed written ob:ections

thereto, cateorically assertin, that the factual position depicted in the

application filed by the respondent-husband was false, frivolous, ve2atious and

motivated. 5t was asserted that the alleations were desined in a sinister

manner, to cast a slur on the reputation of the petitioner-wife. The petitioner-wife

stronly denied and disputed the statement made at the behest of the

respondent-husband to the effect, that she was leadin a fast life in e2tra marital

relationship with 'r. Deven %hah, and had iven birth to a child as a result of her

cohabitation with the said 'r. Deven %hah. %he also asserted, that she had a


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to the wife in the event the paternity test on the basis of the D4Aresults shows the husband to be the father of the child. 5n the eventthe result reveals that the petitioner is not the father of the child, themoney will be refunded by the trial Court to the petitioner herein.

The wife has souht to file an affidavit, but such re3uest has beendeclined. The wife sees a stay of operation of this order, which isrefused. C 4o.$(!# of "#1" is disposed of without any order as tocosts.

A copy of this order will immediately be forwarded to the laboratory bythe husband such that the laboratory is ready to obtain the D4Asample on the specified date.6

)emphasis is ours+

Arieved with the order passed by the &ih Court on 8.1"."#1", the petitioner-

wife has approached this Court by filin the instant special leave petition. 4otice

was issued by this Court on 1(."."#1$. The respondent-husband has entered

appearance. ?leadins are complete.

0. >eave ranted.

=. >earned counsel for the appellant-wife, in the first instance, invited our

attention to %ection 11" of the 5ndian


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for marital intercourse, and in case such an opportunity was shown to have

e2isted durin the subsistence of a valid marriae, the provision by a fiction of

law, accepted the same as conclusive proof of the fact that the child born durin

the subsistence of the valid marriae, was a leitimate child. 5t was the

submission of the learned counsel for the appellant-wife, that the determination

of the ?rivy Council in @arapaya %ervai*s case)supra+ was approved by this

Court in Chiluuri enateshwarly vs. Chiluuri enatanarayana, 1!( %CR

". >earned counsel for the appellant-wife also invited our attention to a

decision rendered by this Court in Boutam @undu vs. %tate of est 9enal and

another, )1!!$+ $ %CC 1=, wherein this Court, inter alia, held as under/

7)1+ That Courts in 5ndia cannot order blood test as a matter ofcourse.)"+ herever applications are made for such prayers in order tohave rovin in3uiry, the prayer for blood test cannot be entertained.

)$+ There must be a stron prima facie case in that the husbandmust establish non-access in order to dispel the presumption arisinunder %ection 11" of the


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4ormally, the rule of evidence in other instances is that the burden ison the party who asserts the positive, but in this instance the burden iscast on the party who pleads the neative. The raison d*etre is theleislative concern aainst illeitimatiEin a child. 5t is a sublime public

policy that children should not suffer social disability on account of thelaches or lapses of parents.

11. e may remember that %ection 11" of the astly, learned counsel for the appellant-wife, placed reliance on the decision

rendered by this Court in %ham >al F @uldeep vs. %an:eev @umar and others,

)"##!+ 1" %CC (, wherein it was inter alia, held as under/

7nce the validity of marriae is proved then there is stronpresumption about the leitimacy of children born from that wedloc.The presumption can only be rebutted by a stron, clear, satisfyin andconclusive evidence. The presumption cannot be displaced by merebalance of probabilities or any circumstance creatin doubt.


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was in fact never dissolved. There is no evidence on record that 9 atany point of time did not have access to D.6

)emphasis is ours+

5t was, therefore, the vehement contention of the learned counsel for the

appellant-wife, that the impuned order passed by the &ih Court directin,

holdin of a D4A test, of the respondent-husband and the male child born to the

appellant-wife, may be set aside.

!. All the :udments relied upon by the learned counsel for the appellant were

on the pointed sub:ect of the leitimacy of the child born durin the subsistence

of a valid marriae. The 3uestion that arises for consideration in the present

appeal, pertains to the alleed infidelity of the appellant-wife. 5t is not the

husband*s desire to prove the leitimacy or illeitimacy of the child born to the

appellant. The purpose of the respondent is, to establish the inredients of

%ection 1$)1+)ii+ of the &indu 'arriae Act, 1!((, namely, that after the

solemnisation of the marriae of the appellant with the respondent, the appellant

had voluntarily enaed in se2ual intercourse, with a person other than the

respondent. There can be no doubt, that the prayer made by the respondent for

conductin a D4A test of the appellant*s son as also of himself, was aimed at the

alleed adulterous behaviour of the appellant. 5n the determination of the issue

in hand, undoubtedly, the issue of leitimacy will also be incidentally involved.

Therefore, insofar as the present controversy is concerned, %ection 11" of the

5ndian


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this Court held as under/

7"1. 5n a matter where paternity of a child is in issue before thecourt, the use of D4A test is an e2tremely delicate and sensitive

aspect. ne view is that when modern science ives the means ofascertainin the paternity of a child, there should not be any hesitationto use those means whenever the occasion re3uires. The other view isthat the court must be reluctant in the use of such scientific advancesand tools which result in invasion of riht to privacy of an individual andmay not only be pre:udicial to the rihts of the parties but may havedevastatin effect on the child. %ometimes the result of such scientifictest may bastardise an innocent child even thouh his mother and herspouse were livin toether durin the time of conception.

"". 5n our view, when there is apparent conflict between the rihtto privacy of a person not to submit himself forcibly to medicale2amination and duty of the court to reach the truth, the court muste2ercise its discretion only after balancin the interests of the partiesand on due consideration whether for a :ust decision in the matter, D4Atest is eminently needed. D4A test in a matter relatin to paternity of achild should not be directed by the court as a matter of course or in aroutine manner, whenever such a re3uest is made. The court has toconsider diverse aspects includin presumption under %ection 11" ofthe


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competent :urisdiction and all aspects concernin matrimonial disputeraised by the parties in that case shall be ad:udicated and determinedby that court. %hould an issue arise before the matrimonial courtconcernin the paternity of the child, obviously that court will be

competent to pass an appropriate order at the relevant time inaccordance with law. 5n any view of the matter, it is not possible tosustain the order passed by the &ih Court. 7

)emphasis is ours+

5t is therefore apparent, that despite the conse3uences of a D4A test, this Court

has concluded, that it was permissible for a Court to permit the holdin of a D4A

test, if it was eminently needed, after balancin the interests of the parties.

Recently, the issue was aain considered by this Court in 4andlal asudeo

9adwai vs. >ata 4andlal 9adwai and another, )"#1+ " %CC (08, wherein this

Court held as under/

71(. &ere, in the present case, the wife had pleaded that thehusband had access to her and, in fact, the child was born in the saidwedloc, but the husband had specifically pleaded that after his wife

left the matrimonial home, she did not return and thereafter, he had noaccess to her. The wife has admitted that she had left the matrimonialhome but aain :oined her husband. Hnfortunately, none of the courtsbelow have iven any findin with reard to this plea of the husbandthat he had not any access to his wife at the time when the child couldhave been beotten.

18. As stated earlier, the D4A test is an accurate test and on thatbasis it is clear that the appellant is not the bioloical father of the irlchild. &owever, at the same time, the condition precedent for

invocation of %ection 11" of the


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D4A test is said to be scientifically accurate. Althouh %ection 11"raises a presumption of conclusive proof on satisfaction of theconditions enumerated therein but the same is rebuttable. Thepresumption may afford leitimate means of arrivin at an affirmative

leal conclusion. hile the truth or fact is nown, in our opinion, thereis no need or room for any presumption. here there is evidence tothe contrary, the presumption is rebuttable and must yield to proof. Theinterest of :ustice is best served by ascertainin the truth and the courtshould be furnished with the best available science and may not be leftto ban upon presumptions, unless science has no answer to the factsin issue. 5n our opinion, when there is a conflict between a conclusiveproof envisaed under law and a proof based on scientificadvancement accepted by the world community to be correct, the lattermust prevail over the former.

1=. e must understand the distinction between a leal fiction andthe presumption of a fact. >eal fiction assumes e2istence of a factwhich may not really e2ist. &owever, a presumption of a fact dependson satisfaction of certain circumstances. Those circumstances loicallywould lead to the fact souht to be presumed. %ection 11" of the


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which constitute one of the rounds, 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 :udments by this Court, is that the leitimacy of a child should not be put

to peril.

11. The 3uestion that has to be answered in this case, is in respect of the

alleed infidelity of the appellant-wife. The respondent-husband has made clear

and cateorical assertions in the petition filed by him under %ection 1$ of the

&indu 'arriae Act, allein infidelity. &e has one to the e2tent of namin the

person, who was the father of the male child born to the appellant-wife. 5t is in

the process of substantiatin his alleation of infidelity, that the respondent-

husband had made an application before the amily Court for conductin a D4A

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 alleations levelled by him )of the appellant-wife*s infidelity+

throuh a D4A test. e aree with him. 5n our view, but for the D4A test, it

would be impossible for the respondent-husband to establish and confirm the

assertions made in the pleadins. e are therefore satisfied, that the direction

issued by the &ih Court, as has been e2tracted hereinabove, was fully :ustified.

D4A testin is the most leitimate and scientifically perfect means, which the

husband could use, to establish his assertion of infidelity. This should

simultaneously be taen as the most authentic, rihtful 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. 5f the


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appellant-wife is riht, she shall be proved to be so.

1". e would, however, while upholdin the order passed by the &ih Court,

consider it :ust and appropriate to record a caveat, ivin the appellant-wife

liberty to comply with or disreard the order passed by the &ih Court, re3uirin

the holdin of the D4A test. 5n case, she accepts the direction issued by the &ih

Court, the D4A test will determine conclusively the veracity of accusation levelled

by the respondent-husband, aainst her. 5n case, she declines to comply with the

direction issued by the &ih Court, the alleation would be determined by the

concerned Court, by drawin a presumption of the nature contemplated in

%ection 11 of the 5ndian


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........................................G.)Gadish %inh @hehar+

..........................................G.)R.@. Arawal+

4ew Delhi

ctober 1(, "#1.

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