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TMI Blog2014 (1) TMI 1793X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 L 900/- per month to the wife and at the rate of L 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. 2. It is against these orders, the petitioner has preferred this special leave petition. Leave granted. 3. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 24th August, 2011 at 11.00 a.m." 6. As directed, the Central Forensic Science Laboratory, Hyderabad submitted its report and on that basis opined that the appellant, "Nandlal Wasudeo Badwaik can be excluded from being the biological father of Miss Neha Nandlal Badwaik", respondent No. 2 herein. 7. 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-acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kamti Devi v. Poshi Ram, 2001(5) SCC 311.)" 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." 10. 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 was a fit ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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....." 12. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccess to his wife at the time when the child could have been begotten. 15. 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 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. 16. 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 scientificall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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