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SUPREME COURT OF INDIA
CHANDRAMAULI KR. PRASAD & JAGDISH SINGH KHEHAR, JJ.
Nandlal Wasudeo Badwaik – Appellant
Versus
Lata Nandlal Badwaik & Another – Respondent
Criminal Appeal No. 24 of 2014 (@ Special Leave Petition (Crl.) No.8852 of 2008)
Decided On : 06-01-2014
(1993) 3 SCC 418; (2005) 4 SCC 449; (2010) 8 SCC 633 - Distinguished
(b) Indian Evidence Act, 1872 - Section 112 - DNA test - Result of a genuine DNA test is scientifically accurate - DNA test confirming that appellant is not biological father of respondent no. 2 - Husband pleading that he had no access to the wife during relevant period - Courts below not returning any finding on this aspect - Section 112 raises a rebuttable presumption - When truth is established, there is no need to resort to presumption - In this view presumption u/s 112 cannot prevail upon DNA test result - Husband cannot be burdened with fatherhood of the child. (Paras 16 and 17)
(2001) 5 SCC 311 - Distinguished
(c) Indian Evidence Act, 1872 - Section 112 - Legal fiction and presumption of fact - Distinction - Section 112 provides for a presumption and does not create a legal fiction. (Para 18)
Facts of the case:
Wife's petition for maintenance u/s 125, CrPC was dismissed.
After some years the wife again file petition for maintenance of herself and her girl child which was allowed throughout although the husband challenged and disputed the paternity of the child.
Finding of the Court:
Husband cannot be burdened with fatherhood of the child.
Result : Appeal allowed.
Certainly. Based on the provided legal document, here are the key points:
The result of a genuine DNA test is scientifically accurate and holds significant evidentiary value in determining paternity (!) .
The presumption under section 112 of the Evidence Act, which states that a child born during a valid marriage is conclusively presumed to be the legitimate child of the husband, is rebuttable and does not create an irrebuttable legal fiction (!) (!) .
When scientific evidence, such as DNA testing, indicates that the husband is not the biological father, this evidence can override the presumption of legitimacy under section 112, especially when the husband proves lack of access during the relevant period (!) (!) .
The court must carefully consider whether the conditions for ordering DNA tests are met, including the strength of the prima facie case and the potential consequences of such testing on the parties involved (!) (!) (!) .
The court's primary objective is to ascertain the truth, and scientific evidence should be given precedence over presumptions when there is a conflict, provided the evidence is reliable and relevant (!) .
The legal distinction exists between a legal fiction and a presumption of fact; the former assumes a fact that may not exist, while the latter is based on logical circumstances that support the presumed fact. Section 112 provides for a presumption, not a legal fiction (!) .
The court has the authority to reject the conclusive presumption of legitimacy when scientific evidence, such as DNA test results, clearly establishes that the husband is not the biological father, thus preventing him from being burdened with paternity (!) .
The prior orders for DNA testing are final and binding, and the scientific results obtained through these tests are conclusive unless successfully rebutted by evidence showing lack of access or other relevant circumstances (!) .
The court emphasizes that the truth must prevail, and scientific advancements should be given due weight in legal determinations involving paternity and related issues (!) (!) .
In cases where the marriage was subsisting at the time of birth, but scientific evidence indicates otherwise, the presumption of legitimacy can be rebutted, leading to the conclusion that the husband is not the biological father (!) .
Please let me know if you need further assistance or specific legal analysis.
Judgment :-
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 30th of June, 1990 at Chandrapur. Wife filed an application for maintenance under Section 125 of the Code of Criminal Procedure, but the same was dismissed by the learned Magistrate by order dated 10th 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 20th 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 20th 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 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 10th 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 8th 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 3rd January, 2011, we had agreed to allow the petitioner’s prayer for conducting 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.
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 22nd 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, Nagpu
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