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TMI Blog2023 (2) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s paternity to be conclusively established if they cohabited when the child was likely to have been conceived. By allowing rebuttal with proof, that the husband could not have been the biological father, the marital presumption was implicitly premised, in part, on a policy linking parenthood with biological reproduction and on an assumption about the probability of the husband's genetic contribution. The presumption protects social parentage over biological parentage. Scientific proof now makes it possible to know with virtual certainty whether a man is genetically related to a child. As a result, Courts are routinely confronted with husbands seeking to disavow their paternity based on newly acquired DNA evidence, notwithstanding them having long performed the social role of father to a child. The short question in the present appeal is as to how a Court can prevent the law's tidy assumptions linking paternity with matrimony, from collapsing, particularly when parties are routinely attempting to dislodge such presumptions by employing modern genetic profiling techniques. Factual Background: 3. The present controversy emerges from an application (Exhibit 84/B) filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed that the appellant had been in an adulterous relationship with Kshitij Bafna, while he was using her phone on 14th September, 2016. That on being confronted about the same the appellant admitted to the adulterous relationship with Kshitij Bafna. iii. That the respondent, being unwilling to accept the truth as confirmed by the appellant, decided to further investigate the issue of Master "X's" paternity and hence, caused a DNA test to be conducted at DNA Labs India, a private laboratory. The DNA Test report dated 24th November, 2016 indicated as follows: "The alleged father lacks genetic markers that must be contributed to the child by the biological father. The probability of paternity is 0%". iv. That the respondent was certain that Master "X" was born as a result of the adulterous relationship of the appellant. However, in order to substantiate his contention as to the appellant's infidelity as a ground for divorce, it was necessary to conduct a DNA test which would reveal that the respondent was not the biological father of Master "X". v. That a DNA test is the most legitimate and scientifically perfect means, that the respondent could use to establish the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be read as evidence. iii. Reliance was placed on the decision of this Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik, (2014) 2 SCC 576, to hold that Section 112 of the Evidence Act was enacted at a time when scientific advancement in the field of DNA test was not as sophisticated. That although Section 112 raises a presumption of conclusive proof on the satisfaction of the conditions enumerated therein, the same is rebuttable. That where the truth of a fact is known, there is no need or room for any presumption. Thus, 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. iv. That the respondent had made out a prima-facie case justifying the Court's exercise of discretionary power to direct conducting DNA Test by collecting blood samples of the respondent and the minor child. v. That the respondent would be able to substantiate his allegations of adultery/infidelity on the part of the appellant, only if permission is granted for conducting a DNA test. That it would be impossible for the respondent to establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant's minor child would encroach on the legal or Constitutional rights of the appellant, the High Court held that fundamental rights guaranteed under Article 21 of the Constitution of India are always subject to reasonable restrictions. Reliance was placed on Sharda vs. Dharmpal, (2003) 4 SCC 493 to hold that a matrimonial court has the power to direct a person to undergo medical tests and such a direction would not amount to a violation of the personal liberty guaranteed under Article 21 of the Constitution of India. iii. That Section 112 of the Indian Evidence Act provides for the presumption of conclusive proof of legitimacy. However, such a presumption is rebuttable. One way of rebutting such presumption is by pleading and establishing a strong prima facie case like the one demonstrated by the respondent. iv. That a Court is required to be sensitive to the fact that but for the medical/DNA test, it would be impossible for the respondent to establish the assertions made in the pleadings. v. That the Family Court had been adequately sensitive in taking note of the statement of the respondent to the effect that he would not disown Master "X" even if the paternit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... child and any issue as to legitimacy will have major societal repercussions on the innocent child. Further, balancing the interests of the child and the respondent does not justify passing a direction for conducting the DNA test of the child. 6.2. Sri Huzefa Ahmadi, learned senior counsel next submitted that the respondent had failed to establish any case demonstrating non-access at the relevant time, so as to dislodge the presumption under Section 112 of the Evidence Act and thus, no direction could have been passed to conduct a DNA test of the child. That the language of Section 112 of the Evidence Act and the decisions of this Court in Goutam Kundu, Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633 and Ashok Kumar vs. Raj Gupta, (2022) 1 SCC 20, would establish that a party seeking a direction to conduct DNA test is required to bring on record strong prima-facie evidence of nonaccess vis-a-vis the presumption under Section 112 of the Evidence Act. That clear and satisfactory evidence of non-access is needed to rebut the presumption under Section 112 of the Evidence Act, vide Perumal Nadar (dead) by Lrs. vs. Ponnuswami, (1970) 1 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or based on the facts of the present case. That the present appeal has been filed with a view to mask the adulterous conduct of the appellant, in the guise of the child's welfare. 7.2. Reliance was placed on the decision of this Court in Uday Chand Dutt vs. Saibal Sen, (1987) Supp SCC 506 to contend that in the face of two concurrent findings of the Family Court and the High Court, such findings may not be interfered with by this Court. 7.3. Learned Senior Counsel appearing on behalf of the respondent referred to Section 41 of the Evidence Act and stated that a judgment in a matrimonial proceeding is a judgment in-rem and therefore, to arrive at a just and proper judgment in the pending Divorce Petition, any evidence to bring out the truth is germane to the matter and has to be permitted to be brought in and cannot be ignored. That the issue is one of a fair trial from the point of view of both the parties. 7.4. It was next submitted that Section 112 of the Evidence Act would not come in the way of the Courts directing DNA tests to be conducted in deserving cases. Reliance was placed on the decision of this Court in Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 to contend th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 of the Evidence Act in directing that a DNA test of Master "X" be conducted? ii. Whether, on non-compliance on the part of the appellant of the direction to subject Master "X" to DNA test, allegations of adultery as against her could be determined by drawing an adverse inference as contemplated under Illustration (h) of Section 114? iii. What order? Legal Scheme: 8. For an easy and immediate reference, the relevant provisions of the Evidence Act are extracted hereinunder: "4. 'Conclusive proof'.-When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. x x x 112. Birth during marriage, conclusive proof of legitimacy. -- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a child born during the subsistence of a marriage is deemed to be legitimate, a burden is cast on the person who questions the legitimacy of the child. 8.2. Further, "access" or "non-access" does not mean actual cohabitation but means the "existence" or "non-existence" of opportunities for sexual relationship. Section 112 refers to point of time of birth as the crucial aspect and not to the time of conception. The time of conception is relevant only to see whether the husband had or did not have access to the wife. Thus, birth during the continuance of marriage is "conclusive proof" of legitimacy unless "non-access" of the party who questions the paternity of the child at the time the child could have been begotten is proved by the said party. 8.3. It is necessary in this context to note what is "conclusive proof" with reference to the proof of the legitimacy of the child, as stated in Section 112 of the Evidence Act. As to the meaning of "conclusive proof" reference may be made to Section 4 of the Evidence Act, which provides that when one fact is declared to be conclusive proof of another, proof of one fact, would automatically render the other fact as proved, unless cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have been begotten or owing to impotency or incompetency due to various reasons or the passage of time since the death of the husband. Thus, even though the husband may be cohabiting, there may be non-access between the husband and the wife. One of the instances 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. 8.6. Thus, "non-access" has to be proved as a fact in issue and the same could be established by direct and circumstantial evidence of an unambiguous character. Thus, there could be "non-access" between the husband and wife despite co-habitation. Conversely, even in the absence of actual co-habitation, there could be access. 8.7. 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 revea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r it. In exercising its discretion, the Court shall have regard to the following considerations:- xxx (4) The Court may, if it sees fit, draw, from the witness's refusal to answer, the inference that the answer if given would be unfavourable." The use of the word expression "may" would imply that the Court has the discretion to draw such an inference and it not bound to do so. The Court is to exercise such discretion having regard to the facts of each independent case. 9.2. For the purpose of reaching one conclusion, the Court can rely on a factual presumption unless the presumption is disproved or dispelled or rebutted. However, Illustration (h) to Section 114 has given enough discretionary power to the Court to draw certain inferences from the facts. The presumption under the section is discretionary and not mandatory. The use of the phrase "may presume" in the said provision indicated that that the Courts of Justice are to use their own sense and experience in judging the effect of particular facts, and in determining whether a presumption is to be drawn therefrom. 10. At this juncture, it may be useful to refer to the decision of this Court in Dipanwita Roy wherein th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the person, who was the father of the male child born to the Appellantwife. It is in the process of substantiating his allegation of infidelity, that the Respondent-husband had made an application before the Family Court for conducting a DNA 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 allegations levelled by him (of the Appellant-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said case, it would have been impossible to prove the allegations of adultery/infidelity in the absence of a DNA test. However, in the present case, no plea has been raised by the respondent-husband as to non-access in order to dislodge the presumption under Section 112 of the Evidence Act. Further, the respondent has specifically claimed that he is in possession of call recordings/transcripts, and the daily diary of the appellant, which would point to the infidelity of the appellant. Therefore, this is not a case where a DNA test would be the only possible way to ascertain the truth regarding the appellant's adultery. Hence, in the present case, there is insufficient material to dislodge the presumption under Section 112 of the Evidence Act and permit a DNA test of Master "X". Further, having regard to the compelling need for a DNA test in the said case, in order to establish the truth, this Court directed that if the appellant-wife therein refused to comply with the direction of the Court regarding DNA test, 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 Evidence A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld born outside wedlock and therefore an illegitimate child. What was contended was that an adverse inference regarding adultery on the part of the appellant herein could be raised. We cannot accede to such an approach in the matter. The issue of paternity of Master "X" is alien to the issue of adultery on the part of the appellant herein. Master "X "being a legitimate child of the parties herein has nothing to do with the alleged adultery on the part of the appellant herein. Hence, the judgment of this Court in Dipanwita Roy is of no assistance to the respondent herein. The aforesaid case, turns on its own facts and cannot be relied upon as a precedent having regard to the facts of this case. Use of DNA profiling technology as a means to prove adultery: 11. With the advancement of science, DNA profiling technology which is a tool of forensic science can, in case of disputed paternity of a child by mere comparison of DNA obtained from the body fluid or body tissues of the child with his parents, offer infallible evidence of biological parentage. But, it is not always necessary to conduct a DNA test to ascertain whether a particular child was born to a particular person, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a matter of course; (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) the court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) no one can be compelled to give sample of blood for analysis." ii. In Bhabani Prasad Jena, this Court emphasised that a direction to use DNA profiling technology to determine the paternity of a child, is an extremely delicate and sensitive aspect. Therefore, such tests must be directed to be conducted only when the same are eminently needed. That DNA profiling 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision stipulates:- "Birth during marriage, conclusive proof of legitimacy.-The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." 8. In our opinion, the Trial Court as also the Revisional Court had completely ignored the said factor and proceeded as if the children were material objects who could be sent for forensic analysis. The other factor, in our opinion, which was ignored by the said two Courts is that the paternity of the children was not in question in the subject-proceeding. 9. The substance of the complaint was not related to paternity of the children of the respondent no.2 but the question was whether the offences under the aforesaid provisions of the 1860 Code was committed against her or not. The paternity of the two daughters of the respondent no.2 is a collateral factor to the allegations on which the criminal case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout DNA test, it may direct DNA test and not otherwise. In other words, only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy the Court can direct such test. v. While directing DNA tests as a means to prove adultery, the Court is to be mindful of the consequences thereof on the children born out of adultery, including inheritance-related consequences, social stigma, etc. 13. Further, in Nandlal Wasudeo Badwaik, the facts of the case were that due to non-opposition of the counsel 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 conclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Law: 16. The default position in India is that for many reasons, parents are presumed to be the decision makers for their children, in so far as healthcare, consent for genetic testing etc. are concerned. Justifications for this position include that parents are free within very broad limits to decide how to bring up their children, parents are thought to be most likely to act in their child's best interests, children generally lack the capacity to make fully competent decisions so someone else must, and state intervention is rarely appropriate. Genetic information is broadly understood as shedding light on a person's essence, as going to the very heart of who he/she is. That kind of intimate, personal information, which is so highly valued in our society, is precisely what the law protects in the right of privacy, which extends even to children. 17. Further, children have the right not to have their legitimacy questioned frivolously before a Court of Law. This is an essential attribute of the right to privacy. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily integrity is intended to benefit the health and development of a child, the interference will not be justified. If any interference with the right to privacy or bodily integrity of a child is to be justified, it must be established that there is objective evidence that establishes a nexus between the measure and aim; that there is no reasonably available alternative which would have minimized the interference with the child's right. Applying the said principles enumerated in the Convention, to the facts of the present case, we are unable to accept that conducting a DNA test of a child, as a means to prove adultery on the part of the appellant-wife, is with a view to provide guidance and assistance to a child, as required under the Convention. Further, interference with the bodily integrity of a child in such a case, would not be justified, as there is no nexus between the Respondent's request for the DNA test and the best interests of the child. 21. The concept of privacy for a child may not be equivalent to that of an adult. However, the evolving capacity of children has been recognised and the Convention acknowledges the control that individuals, including children, have ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aled in a DNA test, would, at the very least adversely affect the child psychologically. It can cause not only confusion in the mind of the child but a quest to find out who the real father is and a mixed feeling towards a person who may have nurtured the child but is not the biological father. Not knowing who one's father is creates a mental trauma in a child. One can imagine, if, after coming to know the identity of the biological father what greater trauma and stress would impact on a young mind. Proceedings which are in rem have a real impact on not only the child but also on the relationship between the mother and the child itself which is otherwise sublime. It has been said that parents of a child may have an illegitimate relationship but a child born out of such a relationship cannot carry the stamp of illegitimacy on its forehead, as, such a child has no role to play in its birth. An innocent child cannot be traumatised and subjected to extreme stress and tension in order to discover its paternity. That is why Section 112 of the Evidence Act speaks about a conclusive presumption regarding the paternity of a child, subject to a rebuttal, as provided in the second part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at of a child who has no parents or has lost a parent and still worse, is that of a child whose paternity is in question without there being any cogent reason for the same. The plight of a child whose paternity and thus his legitimacy, is questioned would sink into a vortex of confusion which can be confounded if Courts are not cautious and responsible enough to exercise discretion in a most judicious and cautious manner. Further, questions surrounding paternity have a significant impact on the identity of a child. Routinely ordering DNA tests, particularly in cases where the issue of paternity is merely incidental to the controversy at hand, could, in some cases even contribute to a child suffering an identity crisis. It is also necessary to take into account that some children, although born during the subsistence of a marriage and on the desire and consent of the married couple to beget a child, may have been conceived through processes involving sperm donation, such as intrauterine insemination (IUI), in-vitro fertilisation (IVF). In such cases, a DNA test of the child, could lead to misleading results. The results may also cause a child to develop a sense of mistrust towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that needs to be considered in the instant case is whether, for a just decision in the divorce proceedings, a DNA test is eminently necessary. This is not a case where a DNA test is the only route to the truth regarding the adultery of the mother. If the paternity of the children is the issue in a proceeding, DNA test may be the only route to establish the truth. However, in our view, it is not so in the present case. The evidence of DNA test to rebut the conclusive presumption available under Section 112 of the Evidence Act, can be allowed only when there is compelling circumstances linked with 'access', which cannot be liberally used as cautioned by this Court in Dipanwita Roy. 26. The case of the Respondent-husband is that if a DNA test is allowed and the same reveals that he is not the biological father of "X", as a corollary, it would be proved that the Appellant-wife committed adultery. We do not find favour with the approach suggested by the Respondenthusband to prove adultery, for the following reasons: i. It is not in dispute that Master "X", the son stated to be born to the Appellant-wife from the wedlock, was born in the year 2013. DNA testing, cannot be used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the respondent took place on 23.11.2005. * The first child was born on 21.12.2009. * The second child was born on 17.7.2013. * The respondent-husband claims to have found out the alleged adulterous conduct of the appellant, on 14.9.2016, (3 years after the birth of the second child) when he accidentally stumbled upon the Whatsapp messages in the mobile phone of the appellant. * Then the respondent privately had a DNA test conducted on the second child, in November 2016, from DNA Labs India, which is said to be an ISO 17025 certified, A2LA and NATA accredited agency. * The respondent then filed a petition for divorce on the ground of adultery, in June 2017. * During the pendency of the proceedings for divorce, the respondent moved an application in November 2020 seeking a direction to subject the second son to DNA testing at the Government Central Forensic Laboratory. 3. The Family Court allowed the application filed by the respondent-husband and the High Court also affirmed the same, forcing the wife to come up with the above appeal, contending that under Section 112 of the Indian Evidence Act, 1872 For short, "Evidence Act" or the "Act", as the case may be, birth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. * In Section 81 in relation to genuineness of Gazettes, newspapers, Acts of Parliament, etc. * In Section 81A in relation to genuineness of every electronic record purporting to be the Official Gazette. * In Section 82 in relation to documents admissible in England without proof of seal or signature. * In Section 83 in relation to accuracy of maps or plans made by the authority of the Government. * In Section 84 in relation to genuineness of every book purporting to be printed or published under the authority of the Government, containing collection of the laws of the country and reports of the decisions of the Courts. * In Section 85 in relation to certain powers-of-attorney. * In Sections 85A, 85B and 85C in relation to electronic agreements, electronic records and the electronic signature certificates. * In Section 89 in relation to due execution of documents called for and not produced after notice to produce. * In Section 111A in relation to certain offences. * In Section 113 in relation to cession of territory. * In Section 113B in relation to dowry death. * In Section 114A in relation to absence of consent in certain prosecutions for rape. 8. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In contrast, Section 114 on which heavy reliance is placed by Shri Kapil Sibal, learned senior counsel for the respondent, deals only with facts which the Court "may presume". The existence of any fact which the Court may presume to have likely to have happened, turn on three things, namely, (i) common course of natural events; (ii) common course of human conduct; and (iii) common course of public and private business. Since natural events, human conduct, etc. are not always consistent, the presumption regarding the existence of any fact with regard to these things, are placed only under the category of facts which "may be presumed". 13. As pointed out earlier, wherever the Act uses the expression "may presume", it is only optional and not mandatory for the Court to presume the existence of such a fact. That it is only optional stands reinforced by, (i) the Illustrations under Section 114; and (ii) the further exposition of those Illustrations. At this stage it may be useful to extract (i) Section 114; (ii) the Illustrations under Section 114; and (iii) the exposition of those Illustrations, all of which read as follows:- "114. Court may presume existence of certain facts.- Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner as to render previous concert highly improbable; As to illustration (c)-A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was young and ignorant person, completely under A's influence; As to illustration (d)-It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course; As to illustration (e)-A judicial act, the regularity of which is in question, was performed under exceptional circumstances; As to illustration (f)-The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances; As to illustration (g)-A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family; As to illustration (h)-A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked; As to illustration (i)-A bond is in possession of the obligor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court orders the same, but if the appellant chooses not to subject the child to DNA test, the Court is obliged to draw an adverse inference in terms of Section 114(h). According to the learned senior counsel, such adverse inference need not be about the paternity of the child but shall be only about the adulterous conduct of the appellant-wife. 19. To drive home the point that such an adverse inference, not about the paternity of the child, but about the adulterous conduct of the wife is permissible in law, learned senior counsel for the respondent placed heavy reliance upon last two paragraphs of the decision in Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365 These paragraphs read as follows: "17. The question that has to be answered in this case is in respect of the alleged infidelity of the appellant wife. The respondent husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person who was the father of the male child born to the appellant wife. It is in the process of substantiating his allegation of infidelity that the respondent husband had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dividual 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 Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved." 20. Heavy reliance is also placed by Shri Kapil Sibal, learned senior counsel for the respondent on paragraph 79 of the decision in Sharda vs. Dharmpal (2003) 4 SCC 493 . It reads as follows: "79. If despite an order passed by the court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. Section 114 of the Indian Evidence Act also enables a court to draw an adverse inference if the party does not produce the relevant evidences in his power and possession." 21. But we do not know how a mix up of Section 112 and Section 114 is possible. Section 112 deals with something where the existence of a fact is taken to be conclusive proof, without any possibility for the disputing party to lead evidence for disproving the same. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 26. 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 the child to DNA, would arise only after the Court comes to the conclusion that a DNA test should be ordered. To put in simple terms, there are three stages in the process, namely, (i) consideration by the Court, of the question whether to order DNA test or not; (ii) passing an order directing DNA test, after such consideration; and (iii) the decision of the wife to comply or not, with the order so passed. The respondent should first cross the outer fence namely whether a DNA test can be ordered or not. It is only after he convinces the Court to order DNA test and successfully secures an order that he can move to the inner fence, regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the devil and the deep sea to the wife. 31. In fact, in cases of this nature the Court must bear in mind that Section 114 uses only the word "may" and not the word "shall". Therefore, the constraints articulated in the exposition to Illustration (h) under Section 114 may dissuade the Court not to presume at all. 32. Hence, we reject the contention of the respondent that what is sought to be invoked is only Section 114(h) and not Section 112. Whose rights, are to tilt the balance in the scales of justice? 33. As rightly contended by Shri Huzefa Ahmadi, learned senior counsel for the appellant, the question as to whether a DNA test should be permitted on the child, is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the respondenthusband to prove by other evidence, the adulterous conduct of the wife, but the child's right to identity should not be allowed to be sacrificed. 34. It is contended by Mr. Kapil Sibal, learned senior counsel for the respondent that after all the endeavour of every Court should be to find the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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