Law Maker

Goutam Kundu v. State of West Bengal

Supreme Court of India · 14 May 1993 · 2 judges · 1993 AIR 2295; 1993 SCR (3) 917; 1993 SCC (3) 418

Courts in India cannot order a blood group test as a matter of course; the husband must first make out a strong prima facie case of non-access to displace the presumption of legitimacy under Section 112 of the Evidence Act.

Facts

The appellant married the second respondent in January 1990. She went to her parents' home to prepare for an examination, conceived in April 1990, refused to undergo an abortion, and gave birth to a daughter in January 1991. On her petition under Section 125 of the Code of Criminal Procedure, the Chief Judicial Magistrate, Alipore, awarded maintenance to her and the child. The appellant then applied for a blood group test of the wife and child, saying that if he proved he was not the father he would not be liable to pay maintenance. The application was rejected, and the Calcutta High Court dismissed his revision, relying on Section 112 of the Evidence Act.

Questions before the Court

  1. Can a court in India direct a blood group test of a wife and child, at the husband's instance, to disprove paternity of a child born during a valid marriage?
  2. What must the husband show before such a test may be ordered, given the presumption under Section 112 of the Evidence Act?

What the Court held

  • Section 112 of the Evidence Act raises a very strong though rebuttable presumption that a child born during a valid marriage is legitimate. It can be displaced only by a strong preponderance of evidence of non-access, not by a mere balance of probabilities.
  • Courts cannot order a blood test as a matter of course, and a prayer for a test made to have a roving inquiry cannot be entertained. The husband must establish a strong prima facie case of non-access.
  • Before ordering a test, the court must carefully consider its consequences, including whether it would brand the child as a bastard and the mother as an unchaste woman. No one can be compelled to give a blood sample for analysis.
  • A blood group test can be relied on as circumstantial evidence that excludes a man as the father. Here the application was made only to avoid paying maintenance, without any ground for the test, so its rejection was upheld and the appeal dismissed.

Why it matters

The judgment lays down five propositions governing when a court may direct a blood test to decide disputed paternity, linking the power to the strong presumption of legitimacy under Section 112 of the Evidence Act and the requirement to prove non-access. It also states that no one can be compelled to give a blood sample, and that the court must weigh the effect of a test on the child and the mother.

In the Court's words

Copied from the official judgment; each passage links to its page.

“From the above discussion it emerges:- (1) that courts in India cannot order blood test as 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 primafacie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.”
Page 10 of the judgment
“(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.”
Page 10 of the judgment
“It is a rebuttable presumption of law that a child born. during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderannce of evidence, and not by a mere balance of probabilities.”
Page 9 of the judgment
“Examined in the light of the above, we find no difficulty in upholding the impugned order of the High Court, confirming the order of the Addl. Chief Judicial Magistrate, Alipore in rejecting the application for blood test. We find the purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test.”
Page 10 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Goutam Kundu v. State of West Bengal and Anr.
Case
Criminal Appeal No. 443 of 1993
Decided
14 May 1993
Bench
Mohan, S. (J), Ahmadi, A.M. (J)
Opinions
Unanimous. Judgment of the Court delivered by Mohan, J.

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