Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik

Supreme Court of India · 6 January 2014 · 2 judges

Holding that an accurate DNA test report prevails over the conclusive presumption of legitimacy under Section 112 of the Evidence Act, the Court set aside maintenance ordered for a child whom DNA tests showed was not the husband's.

Facts

The wife claimed maintenance under Section 125 of the Code of Criminal Procedure for herself and her daughter, saying she had lived with the husband from June 1996 for about two years and conceived during that period. The husband denied this, said he had no physical relationship with her after 1991 and denied that the child was his. The Magistrate granted maintenance to both, and the revision and a petition under Section 482 failed. In the Supreme Court the husband sought a DNA test. After he deposited the arrears, the Court directed a test at the Regional Forensic Science Laboratory, Nagpur, and on the respondents' request a re-test at the Central Forensic Science Laboratory, Hyderabad. Both reports excluded him as the biological father. The respondents then argued that the test should not have been ordered and that Section 112 made the child's legitimacy conclusive.

Questions before the Court

Could the respondents challenge the DNA test reports on the ground that a DNA test ought not to have been directed?
Where a child is born during a valid marriage, does the conclusive presumption of legitimacy under Section 112 of the Evidence Act prevail over DNA test reports showing that the husband is not the father?

What the Court held

The DNA tests were ordered twice by a coordinate Bench without opposition from the respondents, and those orders had attained finality. The question whether DNA profiling should have been ordered was academic, and Goutam Kundu, Banarsi Dass and Bhabani Prasad Jena, which dealt with when such a test may be ordered, had no bearing.
The result of a genuine DNA test is scientifically accurate. No one suggested that the reports were not genuine, so they showed that the appellant was not the biological father.
Section 112 creates a presumption, not a legal fiction, and the presumption is rebuttable. Where the truth is known there is no room for a presumption. When conclusive proof under law conflicts with proof based on science accepted by the world community, the scientific proof must prevail.
The husband's plea of non-access stood proved by the DNA reports, and he could not be compelled to bear the fatherhood of the child. Kamti Devi was confined to its facts, as no DNA test was held there.
The appeal was allowed and the direction to pay maintenance to the daughter was set aside, but payments already made were not to be recovered.

Why it matters

The judgment holds that the conclusive proof of legitimacy under Section 112 of the Evidence Act is a rebuttable presumption that must yield to an accurate DNA test report. It states that where scientific proof accepted by the world community conflicts with conclusive proof under law, the scientific proof prevails, and it confines Kamti Devi to cases where no DNA report was available.

In the Court's words

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

“Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, 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.”

Chandramauli Kr. Prasad, J.Page 17 of the judgment

“We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.”

Chandramauli Kr. Prasad, J.Page 17 of the judgment

“The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth.”

Chandramauli Kr. Prasad, J.Page 18 of the judgment

Provisions interpreted

Section 112, Indian Evidence Act, 1872Now: BSA 116 (NCRB correspondence table)
Section 125, Code of Criminal Procedure, 1973Now: BNSS 144 (NCRB correspondence table)

Related judgments

Distinguishes Goutam Kundu v. State of West Bengal (1993)“As regards the decision of this Court in the cases of Goutam Kundu (supra), Banarsi Dass (supra) and Bhabani Prasad Jena (supra), the same have no bearing in the facts and circumstances of the case. In all these cases, the court was considering as to whether facts of those cases justify passing of an order for DNA test.” (page 10)

Case and bench

Parties: Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik
Case: Criminal Appeal No. 24 of 2014 (arising out of Special Leave Petition (Crl.) No. 8852 of 2008)
Decided: 6 January 2014
Bench: Chandramauli Kr. Prasad, Jagdish Singh Khehar
Opinions: Judgment of the Court delivered by Chandramauli Kr. Prasad, J., with Jagdish Singh Khehar, J. concurring. No separate opinion.

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