Authored By: Saumya Singh
Paternity: Presumption or Truth?
Court: Supreme Court of India
Judgment Date: 06 January 2014
Citation: [Criminal Appeal No. 000024-000024 of 2014] (arising out of Special Leave Petition (CRL.) No. 8852 of 2008) [Diary No. 28336 of 2008]
Parties: Nandlal Wasudeo Badwaik (Petitioner) and Lata Nandlal Badwaik (Respondent 1), Netra Alias Neha Nandlal Badwaik (Respondent 2)
Bench: Justice Chandramauli Kr. Prasad and Justice Jagdish Singh Khehar
Introduction:
There is a very famous saying that "Paternity Is A Presumption and Maternity Is A Truth". Even though presumption has got more weightage in our society than the truth but it is fought more in court-rooms than the truth. In this case of Nandlal Wasudeo Badwaik versus Lata Nandlal Badwaik &Anothers [i], the honourable Supreme Court of India has asserted “where there is a conflict between a conclusive proof envisaged under the law and a proof based on scientific advancement accepted by the entire community to be correct, the latter must prevail over the former”.
Facts of the Case:
Nandlal Wasudeo Badwaik(Petitioner) and Lata Nandlal Badwaik(Respondent 1) were married on June 30, 1990, at Chandrapur. The petitioner was alleged to be the father of Netra Alias Neha Nandlal Badwaik (Respondent 2 - a girl child). It appears in this case that their marriage did not work for long, and soon they landed on rough terms. The wife soon filed an application claiming maintenance under section 125 of the Code of Criminal Procedure, but the trial court dismissed the same application by order dated December 10, 1993. After that, the wife resorted to a fresh proceeding claiming maintenance for herself and her daughter under section 125 of the Code of Criminal Procedure. Her contention was that she started living with her Petitioner-husband on June 20, 1996 and stayed together for about 2 years, and during that period she conceived a child in her womb.
She was then sent to her parents' place for delivery and she gave birth to a girl-child (Respondent 2 herein). Petitioner-husband confronted the claim and alleged that whatever his wife has asserted that she stayed with him since 20 June 1996 is false. He also denied that respondent 2 is his daughter, and according to him, there was no physical relationship between the two of them. The trial court accepted the wife's plea and granted maintenance of Rs. 900/- per month to the wife(Respondent 1) and Rs. 500/- per month to the daughter (Respondent 2). A revision petition and a petition under Section 482 of the Code of Criminal Procedure were filed in response to the aforementioned order, however, both were dismissed.
In opposition to these orders, the Petitioner preferred an SLP (Special Leave Petition).
The honourable Supreme Court of India, in an SLP challenging the paternity of the child, allowed the prayer of the Petitioner for conducting the DNA test. The DNA test was conducted at the Regional Forensic Laboratory, Nagpur and it was opined that the Petitioner was excluded as being the biological father of Respondent 2. Respondent 1 was not satisfied with the result and made a request for a re-test. The court allowed her prayer and a re-test was conducted at the Central Forensic Laboratory, Hyderabad. This test also shows that the Petitioner is not the biological father of Miss Neha Nandlal Badwaik (Respondent 2) and at this stage, the counsel for respondents submitted that the appellant had failed to establish that he had no access to his wife at any time when she could have conceived the respondent 2, that the direction for DNA-test ought not to have been given and thus the result of such a DNA-test should be ignored.
The honourable Supreme Court of India rejected the contention and observed that the coordinating bench have properly considered the circumstances of this case and was right in ordering the DNA test.
Issues raised before the Supreme Court:
The issues raised in this case are as follows:
a)Whether the results of a DNA(Deoxyribonucleic Acid) test results are accurate and whether there is any presumption under section 112 of the Indian Evidence Act.
b)Whether the Appellant is a biological father of Respondent 2?
Relevant Provisions:
a) Section 112 of the Indian Evidence Act, 1872 - Birth during the marriage, conclusive proof of legitimacy.[ii]
b) Section 125 of the Code of Criminal Procedure, 1973 - Order for maintenance of wives, children and parents.[iii]
Case Laws Referred:
a) Goutam Kundu v. the State of W.B.,(1993) 3 SCC 418
b) BanarsiDass v. TeekuDutta,(2005) 4 SCC 449
c) Bhabani Prasad Jena v. Orissa State Commission for Women,(2010) 8 SCC 633
d) Goutam Kundu(supra), BanarsiDass(supra) and Bhabani Prasad Jena(supra)
e) Kamti Devi v. PoshiRam,[(2001) 5 SCC 311]
The decision of the Honorable Supreme Court:
The honourable Supreme Court of India held that while the truth or fact is known, in our opinion, there is no need or room for any presumption. In our opinion, when there is a conflict between a conclusive proof envisaged under the law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. We must understand the distinction between legal fiction and the presumption of fact. Legal fiction assumes the existence of a fact which may not really exist. However,the presumption of a fact depends on the satisfaction of certain circumstances. Those circumstanceswould 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 a presumption. The Court allowed this appeal and set aside the impugned judgement so far as it directs payment of maintenance to respondent 2(daughter of the spouse- Netra alias Neha Nandlal Badwaik).
Conclusion:
In this case, the honourable Supreme Court gives weightage to the DNA test under Section 45 of the Indian Evidence Act over the legitimate presumption under section 112 of the Indian Evidence Act.As in this case, the honourable court has changed the presumption under section 112 of the Indian Evidence Act 1872, which has been followed from the time of its enactment date. This section states that the husband had to prove that he has no access to his wife during the time period when the child was begotten. It can be proved by impotency(unproductiveness) or being far away from the wife.
However, the latter is difficult to prove because “access and non-access mean the existence or non-existence of opportunities for sexual intercourse and it does not mean actual cohabitation". Through this case, the honourable Supreme Court for the first time favours the innocent man to prove his paternity. This ruling of the apex court helps the innocent husband to prove his non-access to his wife by way of a DNA test.
References:
[i] Special Leave Petition (CRL.) No. 8852 of 2008, Date of judgment 6 January 2014.
[ii] Section 112 of the Indian Evidence, 1872.
[iii] Section 125 of the Code of Criminal Procedure, 1973.
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