Introduction 

• This is a landmark judgment relating to rebuttal of presumption of legitimacy under Section 112 of Indian Evidence Act, 1872 by way of DNA test. 
• The Judgment was delivered by a 2 judge bench consisting of Justice Jagdish Singh Khehar and Justice Chandramauli Kr. Prasad.  

Facts 

• The petitioner in this case is the husband of Respondent 1 (Lata Nandlal Badwaik). 
• The marriage between the Petitioner and the Respondent was solemnized on 30th June 1990. 
• The wife filed an application for maintenance under Section 125 of Criminal Procedure Code, 1973 (CrPC) claiming maintenance for herself and her daughter. 
• It is the case of the wife that she started living with her husband from 20th June 1996 and stayed with him for two years when she got pregnant. 
• She was subsequently sent to the house of her mother where she gave birth to Respondent no 2 i.e. the daughter. 
• The husband (petitioner) resisted the claim on the ground that the assertion of wife that she stayed with him was false. 
• Further, he also denied that Respondent no 2 is his daughter. It was the case of the husband that he had no physical relationship with his wife since 1991. 
• The Magistrate accepted the plea of the wife and granted maintenance at the rate of Rs. 900 per month to the wife and Rs. 500 per month to the daughter. 
• The challenge to the said order in revision has failed and also a petition under Section 482 of CrPC challenging these orders. 
• The petitioner also applied for referring the child for DNA test which was refused. 
• It is against these orders that the petitioner has preferred this special leave petition.

Issues Involved

• Whether the wife and the child is entitled to maintenance under Section 125 of CrPC in the facts of the present case? 

Observation  

• The Court observed that in the case of Bhabani Prasad Jena v. Orissa  State Commission for Women (2010) the Court held that : 
  • 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 should not be as a matter of course or in a routine manner. 
  • The Court has to consider whether it is possible to reach the truth without the use of such test. 
• The Court first of all discussed as to what would constitute DNA test: 
  • All living beings are composed of cells which are the smallest and basic unit of life. 
  • DNA (Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. 
  • Given that the Earth’s population is about 5 billion, this test shall have accurate result. 
• The Court has recognized in the case of Kamta Devi v. Poshi Ram (2001) that result of a genuine DNA test is scientifically accurate. 
• The Court further observed that Section 112 of Indian Evidence Act, 1872 (IEA) talks about presumption of legitimacy. This provision provides: 
  • 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. 
  • 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 marriage have no access to each other at any time when the child could have been begotten. 
• It is to ne noted that in the present facts while the husband pleaded that he had no access to the wife, the wife denied the same. However, the Courts below did not give any finding with regard to the 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. 
• The Court made the following observations with respect to DNA test and Section 112 of IEA: 
  • Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. 
  • 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. 
  • 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. 
• 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, the Court could not compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary.  
• The Court further observed that the present case is different as in the present case the 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 IEA. 
• Thus, appeal was allowed and the judgment so far as it directs payment of maintenance to the child was set aside.  

Conclusion 

• This is the landmark judgment which talks about rebuttal of presumption under Section 112 of IEA by use of DNA test.