TMI Blog2023 (2) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of non-access despite co-habitation is the impotency of the husband. If the husband has had access, adultery on the wife's part will not justify a finding of illegitimacy. Section 112 was enacted at a time when modern scientific tests such as DNA tests, as well as Ribonucleic acid tests ( RNA , for short), were not in contemplation of the legislature. However, even the result of a genuine DNA test cannot escape from the conclusiveness of the presumption under Section 112 of the Evidence Act. If a husband and wife were living together during the time of conception but the DNA test reveals that the child was not born to the husband, the conclusiveness in law would remain irrebuttable - the conclusive presumption of paternity of a child born during the subsistence of a valid marriage is that the child is that of the husband and it cannot be rebutted by a mere DNA test report. What is necessary to rebut is the proof of non-access at the time when the child could have been begotten, that is, at the time of its conception vide SMT. KAMTI DEVI VERSUS POSHI RAM [ 2001 (5) TMI 955 - SUPREME COURT ]. Whether an adverse presumption can be drawn in the nature of Illustration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the wife, this Court directed that the serological test be conducted. The report was brought on record, which stated that the appellant-husband was not the biological father of the minor child. At the request of the respondent-wife, a re-test was ordered, which also revealed the same result. The plea with regard to the applicability of section 112 of the Evidence Act was taken only after the DNA test was conducted on the direction of this Court and the report was brought on record. This Court held that when a report of a DNA test conducted on the direction of a Court, was available on record and was in conflict with the presumption of conclusive proof of the legitimacy of the child, the DNA test report cannot be ignored. Hence, this Court relied on the DNA test report and held that the appellant-husband would not be liable to pay maintenance - in the present case, no DNA test is available till date, which was conducted on the direction of a competent Court. Therefore, the respondent-husband would first need to dislodge the presumption under Section 112 of the Evidence Act and thereafter seek a direction to conduct a DNA test of Master X . The Rights to Privacy, Autonomy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But Section 112 keeps a window open, enabling a party to the marriage who questions the legitimacy of the child, to show that he/she had no access to the other, when the child could have been begotten. In the case on hand, the very pleading of the respondent in his petition for divorce before the Family Court is that the second child-Master X was born on 17.7.2013 and that the respondent came to know about the alleged adulterous behavior of the appellant herein, only on 14.9.2016. The pleading of the respondent extracted above to the effect that after September 2016, he has had no physical relationship with the appellant-wife means that he has at least had access to the wife both at the time when the child was begotten and for a full period of three years even thereafter. Therefore, the conclusive proof under Section 112 has actually come into play in this case. There is another fallacy in the argument of the respondent. It is the contention of the respondent that he is seeking an adverse inference to be drawn only as against the wife under Section 114(h), upon the refusal of the wife to subject the child to DNA test. But the stage at which the wife may refuse to subject t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the parties to a marriage. The lis is not between one of the parties to the marriage and the child whose paternity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child. The Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed. - CIVIL APPEAL NO 1308 OF 2023 (Arising out of SLP (C) No.9855/2022) - - - Dated:- 20-2-2023 - HON'BLE V. RAMASUBRAMANIAN AND HON'BLE B.V. NAGARATHNA,JJ. For the Petitioner : Mr. Huzefa Ahmadi, Sr. Adv. Mr. Sanyat Lodha, AOR Ms. Aakashi Lodha, Adv. Ms. Sanjana Saddy, Adv. Ms. Hima Bharadwaj, Adv. For the Respondent : Mr. Vikrant Pachnanda, AOR JUDGMENT NAGARATHNA J. Leave granted. 2. Indian Law has proceeded on the assumption that parents are persons who beget a child or who assume the legal obligations of parenthood through formal adoption of child. Under the Indian legal spectrum, a husband is strongly presumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y stated, the facts leading to the present appeal are as follows: 4.1. The appellant and the respondent got married as per Hindu rites and rituals at Pune, on 23rd November, 2005. Their first child, Master Y , was born on 21st December, 2009. During the subsistence of their marriage, a second son, namely, Master X , was born on 17th July, 2013. 4.2. On 1st June, 2017, the respondent-husband, filed a petition for divorce under Sections 13(1)(i) and (ia) of the Hindu Marriage Act, 1955 being Petition No.P.A. 639 of 2017 and a petition seeking custody of their two children, being P.D. No. 17 of 2017 against the appellant-wife, before the Family Court, Pune. In the petition for divorce, the respondent, interalia, alleged that the appellant-wife was in an adulterous relationship with one Kshitij Bafna, and the respondent discovered the same on 14th September, 2016 when he found that certain intimate messages had been exchanged between the appellant and Kshitij Bafna. 4.3. On 9th November, 2020, the respondent filed an application, being application 84/B, before the Family Court, Pune seeking a direction to subject Master X , the second child born to the appellant-wife, durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the conversation and the contents of the diary, the respondent sought for the leave of the Family Court to produce the recording, the diary and other evidences, if necessary, at the time of final hearing of the divorce proceedings. 4.4. The appellant filed an affidavit in reply, opposing the application filed by the respondent seeking a direction to conduct DNA test of Master X , inter-alia, contending that the respondent had not made out a prima-facie case requiring the Court to exercise its discretion to direct DNA test to be conducted as prayed for. 4.5. By an order dated 12th August, 2021, the Family Court, Pune, allowed the application filed by the respondent seeking DNA test of Master X and further observed that in the event that the appellant fails to comply with the directions of the Court, the allegations of adultery as against her would be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114 of the Indian Evidence Act, 1872 (hereinafter Evidence Act for the sake of brevity). The salient findings of the Family Court may be encapsulated as under: i. That the respondent had filed the application seeking directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Indian Evidence Act. 4.6. Aggrieved by the Order dated 12th August, 2021 passed by the Family Court, Pune, the appellant filed a Writ Petition, being Civil Writ Petition No.7707 of 2021, before the High Court of Judicature at Bombay, assailing the same, inter-alia, on the ground that the Family Court failed to appreciate that a strong prima-facie case is a sine qua non for directing DNA profiling and that there was no evidence to support the respondent s prayer for DNA test. Further, that the order of the Family Court was contrary to the presumption provided under Section 112 of the Indian Evidence Act and the provisions of the Hindu Marriage Act, 1955 and was contrary to the fundamental rights guaranteed under Article 21 of the Constitution of India. 4.7. By the impugned judgment dated 22nd November, 2021 the High Court dismissed the Writ Petition filed by the appellant herein and upheld the order of the Family Court dated 12th August, 2021. The pertinent findings of the High Court may be epitomized as under: i. That the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior Counsel, Sri Kapil Sibal for the respondent-husband and perused the material on record. 6. At the outset, Sri Huzefa Ahmadi submitted that the High Court had erred in upholding the direction of the Family Court, Pune, to conduct the DNA test of the younger son of the parties. That the respondent had failed to satisfy the test of eminent need as laid down by this Court in Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418 wherein it was observed that the Indian law leans towards legitimacy and that a direction for DNA test should be passed only after balancing the interests of the parties, including the rights of the child, and if such a test is eminently needed. That in the present case, the respondent had failed to demonstrate that the direction for conducting DNA test could not have been avoided, and therefore, the direction to conduct the same was erroneous. 6.1. Learned Senior Counsel for the appellant further contended that the High Court erred in observing that the interest of the child would not be jeopardized by simply relying on the statement of the respondent that he would not disown his son. That even if such a statement is taken at its face value, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A test, to produce unauthenticated reports and this would have a devastating effect on the child. 6.5. With respect to the assertion of the respondent that he came across messages on the phone of the petitioner in the month of September 2016, disclosing the appellant s adulterous actions, it was submitted on behalf of the appellant that no evidence or material in support of the same had been produced by the respondent and thus, no reliance can be placed on the same. 6.6. That it would be incorrect to state that simply because DNA tests are scientifically accurate, the same may be routinely conducted to dislodge the presumption of legitimacy under Section 112 of the Evidence Act. 6.7. It was averred that the issue of legitimacy is inextricably linked to the allegations of adultery and the same cannot be lightly trifled with, merely at the request of the respondent. Therefore, the presumption of legitimacy must be preserved by Courts. With the aforesaid submissions, learned Senior Counsel, Sri Huzefa Ahmadi has prayed that the instant appeal be allowed and the impugned judgment of the High Court, as well as the order of the Family Court dated 12th August 2021, be set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to undergo a medical test would not be violative of the right of personal liberty as envisaged in Article 21 of the Constitution of India. That therefore, the reluctance and hesitation of the appellant to allow the DNA test corroborates the allegations of adultery against her and brings forth the need to conduct the said DNA Test. 7.6. That the Family Court passed the order directing DNA test after having due regard to the prima facie evidence brought before the said court and the High Court has rightly confirmed the order passed by the Family Court. The Report of the privately conducted DNA test filed before the Family Court, in unequivocal terms rules out the possibility of the respondent being the biological father of the minor child. The said Report strongly lays down the foundation for taking recourse of moving an application for directions to conduct the DNA test. That under Section 14 of the Evidence Act, Family Courts have been given vast powers to take into consideration any report, statement, documents, and information which may assist the court to deal effectively with the dispute and thus, the Family Court was right in accepting the report of the privately conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iety, certain axiomatic presumptions have to be drawn. One such presumption is the conclusive presumption of paternity under Section 112 of the Evidence Act. Section 112 embodies the rule of law that the birth of a child during the continuance of a valid marriage or within 280 days (i.e., within the period of gestation) after its dissolution shall be conclusive proof that the child is legitimate unless it is established by evidence that the husband and wife did not or could not have any access to each other at any time when the child could have been conceived. The object of this provision is to attach unimpeachable legitimacy to children born out of a valid marriage. When a child is born during the subsistence of lawful wedlock, it would mean that the parents had access to each other. Therefore, the Section speaks of conclusive proof of the legitimate birth of a child during the period of lawful wedlock. The latter part of the Section is with reference to proof of the nonaccess of the parents of the child to each other. Thus, the presumption of legitimacy of the birth of the child is rebuttable by way of strong evidence to the contrary. The principle underlying Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man. Operation of the conclusive presumption can be avoided by proving non-access at the relevant time. 8.4. The latter part of Section 112 of the Evidence Act indicates that if a person is able to establish that the parties to the marriage had no access to each other at any time when the child could have been begotten, the legitimacy of such child can be denied. That is, it must be proved by strong and cogent evidence that access between them was impossible on account of serious illness or impotency or that there was no chance of sexual relationship between the parties during the period when the child must have been begotten. Thus, unless the absence of access is established, the presumption of legitimacy cannot be displaced. Thus, where the husband and wife have co-habited together, and no impotency is proved, the child born from their wedlock is conclusively presumed to be legitimate, even if the wife is shown to have been, at the same time, guilty of infidelity. The fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a child. Therefore, shreds of evidence to the effect that the husban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oshi Ram, (2001) 5 SCC 311. 9. The next aspect of the matter that requires to be considered is whether an adverse presumption can be drawn in the nature of Illustration (h) to Section 114, as to the wife s adulterous conduct when she refuses to comply with a direction for the child to undergo a DNA test. 9.1. Section 114 states that the Court may presume the existence of any fact that it thinks likely to have happened, having regard to the common course of natural events, human conduct and public and private business, in relation to the facts of a particular case. Broadly speaking, there are two classes of presumptions, viz presumption of fact and presumption of law. The latter is again categorised as rebuttable presumptions of law and irrebuttable or conclusive presumptions of law . The Court may presume that if a man refuses to answer a question which he is not compelled to answer by law, the answer if given would be unfavourable to him. The questions that one is not compelled to answer by law, are dealt with in Sections 121-129. Refusal to answer a question is generally a legitimate ground for unfavourable inference against the person who may not answer the question. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with another person and consequently demonstrated infidelity on the part of the appellant-wife. This Court took note of the plea of the respondent-husband as to nonaccess at the relevant time, and accordingly opined that it would be a fit case for directing that a DNA test be conducted. Further, in the facts and circumstances of the said case, this Court accepted that a DNA test would be the only way in which the respondent-husband could establish his plea of infidelity on the part of the appellant-wife. While upholding the direction of the High Court to conduct DNA test of the minor child, this Court cautioned that if the direction to hold such a test can be avoided, it should be so avoided, and legitimacy of the child should not be put to peril. The relevant portions of the decision in the said case have been usefully extracted hereinunder: 10. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder: 114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (h) - That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him. This course has been adopted to preserve the right of individual privacy to the extent possible. of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated Under Section 112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had taken a specific plea of non-access. Further, the Court accepted that a DNA test would be the only manner in which the case of adultery could be proved. However, facts of the present case neither warrant a direction to conduct a DNA test of Master X , nor do they justify drawing an adverse inference as against the appellant-wife, under Section 114 of the Evidence Act, on her refusal to subject her son to a DNA test. As per Black's Law Dictionary, 9th Edition, Inference means a conclusion reached by considering other facts and deducing a logical consequence from them. Adverse Inference is explained as follows: A detrimental conclusion drawn by the fact-finder from a party s failure to produce evidence that is within the party s control. Some courts allow the inference only if the party s failure is attributable to bad faith. The aforesaid meaning would also suggest that inferences, whether adverse or otherwise, are to be drawn by the Court, on consideration of facts and circumstances of each individual cases. Hence, the judgment of this Court in Dipanwita Roy is to be read in the aforesaid context. In the instant case, there is no dispute ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is expedient in the interest of justice to do so, and when the fact situation in a given case warrants such an exercise. Thus, an order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case. 11.2. This Court has, while considering questions connected with Section 112 of the Evidence Act, consistently expressed the stand against DNA tests being ordered on a mere asking. Further, the law does not contemplate use of DNA tests as exploratory or investigatory experiments for determining paternity. The following decisions of this Court are highly instructive in determining the circumstances under which a DNA test may be ordered by a Court in matters involving disputed questions of paternity: i. In Goutam Kundu, this Court was required to consider whether a blood test of a minor child could be ordered to be conducted as a means to determine disputed questions of paternity in what was essentially a matrimonial dispute concerning maintenance. In the said case, the appellant-husband therein disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a view to facilitate proof of allegations under Sections 498A, 323, 354, 506 and 509 of Indian Penal Code, 1860. This Court speaking through Aniruddha Bose, J. at the outset took note of the fact that the dispute was essentially one relating to dowry related offences, and that paternity of the children of the complainant was not directly related to the allegations. The complainant therein sought for a direction to conduct DNA test of her two minor children, in order to establish that they were born as a result of her forced relationship with her brother-in-law. Rejecting the complainant s plea, this Court held as under as to the power of Courts to subject children to DNA testing, in proceedings in which their status is not required to be examined: In the present proceeding, we are taking two factors into account which have been ignored by the Trial Court as also the Revisional Court. The Trial Court allowed the application of the respondent no.2 mechanically, on the premise that the DNA fingerprint test is permissible under the law. High Court has also proceeded on that basis, referring to different authorities including the case of Dipanwita Roy v. Ronobroto Roy [2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physical autonomy of a person. The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial Court s direction. (Emphasis by us) 12. Having regard to the aforesaid discussion, the following principles could be culled out as to the circumstances under which a DNA test of a minor child may be directed to be conducted : i. That a DNA test of a minor child is not to be ordered routinely, in matrimonial disputes. Proof by way of DNA profiling is to be directed in matrimonial disputes involving allegations of infidelity, only in matters where there is no other mode of proving such assertions. ii. DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act. Further, if no plea has been raised as to non-access, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f legitimacy of the child, under Section 112 of the Evidence Act. However, in the present case, no DNA test is available till date, which was conducted on the direction of a competent Court. Therefore, the respondent-husband would first need to dislodge the presumption under Section 112 of the Evidence Act and thereafter seek a direction to conduct a DNA test of Master X . 14. The evidentiary value of blood tests for determining paternity, has been discussed in Rayden and Jackson on Divorce and Family Matters, (1983) Vol. I, at Pg. 1054, in the following words: depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a parentage set up in the said case. But the consideration remains that the party asserting the claim to have a child and the rival set up parents put to blood test must establish his right to do so. The courts exercise protective jurisdiction on behalf of an infant. In my considered opinion, it would be unjust and not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The child cannot be allowed to suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance. The Declaration, inter-alia, recognises that a child, for full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding. The Declaration further emphasises the importance of family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children. 19. Article 19 of the Convention protects children against all forms of violence, neglect, and abuse; Article 24(3) protects children against traditional practices that are prejudicial to a child s health; and Article 37 protects children against torture and cruel, inhuman, and degrading treatment. Complementing these provisions is a child s right to privacy, which extends to the physical and psychological integrity of a child. Importantly, violations of a child s bodily integrity that reach the threshold of torture or cruel inhuman degrading treatment will never be justifiable, given the absolute prohibition on such treatment. Thus, a violation of this prohibition will always constitute a violation of a child s right to privacy. However, the right to privacy has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a child s parentage must not be frivolously challenged before Courts of Law. Best interests of a child: 22. The phrase mankind owes to the child the best it has to give clearly underlines our duties towards children, and it entitles them to the best that mankind can give. This implies that the interest of the child should be given primary consideration in actions involving children. This idea has been effectively expressed in Article 3 of the Convention on the Rights of Child which reads as under: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . 22.1 In two English decisions reported in Re L., (1968) 1 All ER 20 and B. (B.R.) vs. B.(J.), (1968) 2 All ER 1023, blood test of the child was permitted for determining paternity. However, the decision in Re L. was passed based on the reasoning that a blood test can be directed if it serves the best interest of the child. Lord Denning, MR, was however of the view that blood tests could be ordered even in cases involving paternity i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In many cases, this would cast a doubt on the chastity of the mother of a child when no such doubt could arise. As a result, the reputation and dignity of a mother of a child would be jeopardised in society. What is of utmost importance for a lady who is the mother of a child is to protect her chastity as well as her dignity and reputation, in that, she would also preserve the dignity of her child. No woman, particularly, who is married can be exposed to an enquiry on the paternity of a child she has given birth to in the face of Section 112 of the Evidence Act subject to the presumption being rebutted by strong and cogent evidence. Section 112 particularly speaks about birth of a child during marriage and raises a conclusive presumption about legitimacy. Section 112 has recognised the institution of marriage i.e., a valid marriage for the purpose of conferring legitimacy on children born during the subsistence of such a marriage. As to children born outside a valid marriage, the personal law of respective parties would apply. But in the cases of children born from a relationship in the nature of marriage and when the parents are in a domestic relationship or those born as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person to disclose, in the course of proceedings in rem, the medical procedures resorted to in order to conceive. The reasons for the parent s refusal may be several, and hence, it is not prudent to draw an adverse inference under Section 114 of the Evidence Act, in every case where a parent refuses to subject the child to a DNA test. Therefore, it is necessary that only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy, the Court can direct such test. Further, a direction to conduct DNA test of a child, is to be ordered even rarely, in cases where the paternity of a child is not directly in issue but is merely collateral to the proceeding, such as in the instant case. Conclusions: 23. Illegitimate - a term that brands an individual with the shame of being born outside wedlock, casts a shadow on one s identity. Times change and attitudes may change, but the impact of growing up with the social stigma of being illegitimate, does not. The Courts must hence be inclined towards upholding the legitimacy of the child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and the daily diary of the appellant, which may be summoned in accordance with law to prove the infidelity of the appellant. Therefore, it seems to us that the respondent is in a position to attempt to make out a case based on such evidence, as to adultery/infidelity on the part of the appellant. iii. No plea has been raised by the respondent-husband herein as to non-access in order to dislodge the presumption under Section 112 of the Evidence Act. Therefore, no prima-facie case has been made out by the respondent which would justify a direction to conduct a DNA test of Master X . iv. No adverse inference can be raised in the instant case regarding the legitimacy or paternity of Master X vis- -vis the appellant herein, on her declining to subject Master X to a paternity test. Further, on the appellant declining to subject Master X to a paternity test, no adverse inference can be drawn as regards the alleged adultery on the part of the appellant herein can be raised. In our view, the allegation of adultery has to be proved by the respondent herein de hors the issue of paternity of Master X . 27. In the result, the present appeal is allowed. Consequently, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent is not even questioning the legitimacy of the child, but alleging adultery against the appellant-wife and that therefore, on the refusal of the wife to subject the child to DNA test, a presumption under Section 114(h) of the Evidence Act can be drawn against the appellant-wife. In other words, his contention is that what is applicable in the case on hand, is not Section 112 but Section 114(h) and that the Court need not subject the child to DNA test, if the appellant is not willing. 5. In the light of the aforesaid contention, two aspects, in my opinion, require deeper analysis. They are (i) the interplay between Sections 112 and 114(h) of the Evidence Act; and (ii) whose rights, are to tilt the balance in the scales of justice? Interplay between Sections 112 and 114(h) of the Evidence Act 6. Section 4 of the Evidence Act defines the expressions may presume , shall presume and conclusive proof . Section 4 indicates the course of action to be followed by a Court, wherever the Act makes it (i) optional to presume a fact; (ii) mandatory to presume a fact; and (iii) obligatory for the Court to take one fact to be conclusive proof of another. To put it in simple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 88 in relation to telegraphic messages. In Section 88A in relation to electronic messages. In Section 90 in relation to documents which are thirty years old. In Section 90A in relation to electronic records which are five years old. In Section 113A in relation to abetment of suicide by a married woman. In Section 114 in relation to existence of certain facts. 9. It is interesting to note that the Evidence Act does not include legitimacy of birth during marriage, either under the category of a fact which may be presumed or under the category of a fact which shall be presumed . On the contrary, the Act places birth during marriage as conclusive proof of legitimacy. But Section 112 keeps a window open, enabling a party to the marriage who questions the legitimacy of the child, to show that he/she had no access to the other, when the child could have been begotten. 10. We have seen that under Section 4, when one fact is declared by the Act to be conclusive proof, the Court shall, on proof of that one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. This is why Section 112 does not use the word p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; (b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars; (c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; (d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence; (e) That judicial and official acts have been regularly performed; (f) That the common course of business has been followed in particular cases; (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; (h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. But the Court shall also have regard to such facts as the following, in considering whether such m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ims do or do not apply to the particular case. 15. It is relevant to note that there are nine Illustrations under Section 114, from (a) to (i). Immediately after those Illustrations, the exposition of those Illustrations begins with the words: But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it . 16. Let us take for instance, Illustration (h) under Section 114. It says that if a man refuses to answer a question which he is not compelled to answer by law, the Court may presume that the answer, if given, would be unfavourable to him. But the exposition to Illustration (h) says that in considering the maxim under (h), the Court shall have due regard as to whether the refusal of the man to answer the question, is due to the fact that the answer may cause loss to him in matters unconnected with the matter in relation to which it is asked. 17. In other words, while dealing with a situation where a presumption in terms of Illustration (h) under Section 114 is sought to be raised, the Court has to examine whether the refusal of the person to answer, is on account of the fear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant wife's infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful 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. If the appellant wife is right, she shall be proved to be so. 18. We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the appellant wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n begotten. Section 114 has nothing to do with, nor is in connection with conclusive proof of legitimacy dealt with by Section 112. Both Section 112 and Section 114 fall under different compartments. The word presumption itself is not used in Section 112. The expression used in Section 112 is conclusive proof . Therefore, by virtue of Section 4, no evidence shall be allowed to be given for the purpose of disproving it. 22. As we have indicated elsewhere, if one of the parties to the marriage shows that he had no access to the other at the time when the child could have been begotten, then Section 112 itself does not get attracted. On the contrary, if the parties have had access to each other at the relevant point of time, the fate of the question relating to legitimacy is sealed. 23. We are not suggesting for a moment that Section 112 acts as a shield even for the alleged adulterous conduct on the part of the wife. All that we say is that anything that would destroy the legal effect of Section 112 cannot be used by the respondent, on the ground that the same is being done to achieve another result. 24. In the case on hand, the very pleading of the respondent in his peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NA test can be ordered at all. Therefore, the respondent cannot jump to the inner fence bypassing the outer fence. 28. Coming to the presumption under Section 114(h), the contention of the respondent is obviously misplaced. An adverse inference, in law, can be drawn only against the person who refuses to answer a question. In the case on hand, the appellant has a dual role to play, namely, that of the respondent s wife and that of Master X s mother. If the appellant does or refuses to do something, for the purpose of deriving a benefit to herself, an adverse inference can be drawn against her. But in her capacity as a mother and natural guardian if the appellant refuses to subject the child to DNA test for the protection of the interests and welfare of the child, no adverse inference of adultery can be drawn against her. By refusing to subject the child to DNA test, she is actually protecting the best interests of the child. For protecting the best interests of the child, the appellant-wife may be rewarded, but not punished with an adverse inference. By taking recourse to Section 114(h), the respondent cannot throw the appellant to a catch-22 situation. 29. Therefore, Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior counsel that the refusal to subject the child to DNA test would infringe upon the respondent s right to fair trial. To buttress the contention that the right to privacy of an individual must yield to the right to fair trial of another, reliance is placed upon the decision of this Court in Sahara India Real Estate Corporation Limited Ors. vs. Securities and Exchange Board of India Anr. (2012) 10 SCC 603. 35. Attractive as it may seem at first blush, the said argument does not carry any legal weight. The lis in these cases is between the parties to a marriage. The lis is not between one of the parties to the marriage and the child whose paternity is questioned. To enable one of the parties to the marriage to have the benefit of fair trial, the Court cannot sacrifice the rights and best interests of a third party to the lis, namely, the child. 36. Therefore, I concur wholeheartedly with my learned sister that the Family Court as well as the High Court were wrong in allowing the application of the respondent for subjecting the child to DNA test. Therefore, the appeal deserves to be allowed and accordingly it is allowed. However, this shall not preclude the respondent-hus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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