Roy v. Roy: DNA Test and Adultery Presumption

Research Project on the Case of Dipanwita Roy v.
Ronobroto Roy
Analysis of the Case and Interpretation of Statutes
LEGAL REASONING
INTERNAL ASSESSMENT- II
RESEARCH PROJECT ON THE CASE OF
DIPANWITA ROY
V.
RONOBROTO ROY
ANALYSIS OF THE CASE AND INTERPRETATION OF STATUTES
S. Aishwariya
Roll No. 23
Division ‘A’
II Year, BBA LLB
PRN No.: 13010124023
Legal Reasoning: Internal Assessment II

Research Project on the Case of Dipanwita Roy v. Ronobroto Roy
TABLE OF CONTENTS:
INTRODUCTION:....................................................................................................................2
FACTS OF THE CASE:............................................................................................................3
ISSUES PRESENTED:..............................................................................................................3
RULES APPLICABLE TO THE CASE:..................................................................................4
Statutory Provisions:..............................................................................................................4
1. S. 13(1)(ii) of the Hindu Marriage Act, 1955..........................................................4
2. S 112 of the Indian Evidence Act, 1872..................................................................4
3. S. 114 of the Indian Evidence Act, 1972.................................................................4
Case laws:...............................................................................................................................5
1. Karapaya Servai v. Mayandi- Interpretation of the word ‘access’ as used in s. 112
of the Indian Evidence Act, 1872.......................................................................................5
2. Goutam Kundu v. State of West Bengal and another- Whether or not Courts can
order a blood test to further investigation..........................................................................5
3. Kamti Devi and another v. Poshi Ram- Higher burden of proof on the husband
alleging that the child born during the subsistence of his marriage is not his child..........5
4. Sham Lal & Kuldeep v. Sanjeev Kumar and others- Presumption of legitimacy of
a child born during the subsistence of a marriage, even with strong evidence regarding
adultery of wife..................................................................................................................5
5. Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for
Women and another- Balancing interests while giving an order for DNA Test to
determine paternity.............................................................................................................5
6. Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another- Conclusive
Proof by way of DNA Test in conflict with s. 112 of the Indian Evidence Act, 1872......5
APPLICATION OF RULES:.....................................................................................................5
INTERPRETATION OF STATUTES:......................................................................................8
Literal and Mischief Rules of Interpretation:.........................................................................9
Literal Rule-.......................................................................................................................9
Mischief Rule-....................................................................................................................9
Mimamsa Rules of Interpretation:.........................................................................................9
Abhyasa-.............................................................................................................................9
Phala-.................................................................................................................................9
Atharvada-........................................................................................................................10
CONCLUSION:.......................................................................................................................10
Legal Reasoning: Internal Assessment II Page

INTRODUCTION:
Hindus, from time immemorial, have placed the holy union of marriage, or the matrimonial
bond on a very high pedestal. So much so, Hinduism goes on to say that marriage is a
sacrament: it is a sacrosanct, permanent, indissoluble and eternal union.1 It is said that the
wife completes her husband, she is his sahadharmini: one who participated with equal right,
in upholding Dharma.2
Edvard Westermarck defined marriage as a more or less durable connection between male
and female lasting beyond the mere act of propagation till after the birth of the offspring. 3
Later on, he went back on this definition of marriage, going on to boldly (albeit
provisionally) describe marriage as a relation of one or more men to one or more women that
is recognized by custom or law.4
This definition of marriage, of course clashes with the laws that prevail in India related to
marriage. Personal Laws in India, including Christian Law 5, Hindu Law6 and Parsi Law7
declare monogamy as a pre-requisite to marriage, with the exception of Islamic Law, which
allows a Muslim man to have upto four wives.8 However, since it makes a provision for
recognition by custom or law as a precondition, it reconciles (to an extent) with the personal
laws prevailing in this vast subcontinent.
While polygamy and polyandry are not permitted by Hindu Laws, by virtue of s. 5(i) of the
Hindu Marriage Act, 19559, how seriously is fidelity taken in a Hindu marriage? How far can
one go (in the Court which is hearing his/her divorce petition) so as to prove that adultery has
occurred, and what standard of proof is demanded by these Courts?
In the case of Dipanwita Roy v. Ronobroto Roy10, these questions were answered, even if not
extensively and in detail, but to bring a certain degree of clarity in the issue.
1
Dr. Paras Diwan, ‘Family Law’, (10th Ed., 2013), Allahabad Law Agency.
2
Manusmriti, IX, 64-68
3
Westermarck, Edvard, ‘The History of Human Marriage’ , (1922, Volume 1), at p. 71. ISBN 0-7661-4618-9
4
Westermarck, Edvard, ‘The Future of Marriage in Western Civilization’, Books for Libraries Press, (1936) , at
p. 3, ISBN 978-0-8369-5304-6.
5
Dr. Samuele Bacchiocchi, ‘The Marriage Covenant: A Biblical Study on Marriage, Divorce and Remarriage’,
http://www.biblicalperspectives.com/books/marriage/1.html last visited at -135 hrs on 3rd Nov., 2014
6
Section 5(i), Hindu Marriage Act, 1955, [No. 25 of 1955]
7
Section 4(1), Parsi Marriage and Divorce Act, 1936, [No. 3 of 1936]
8
http://www.islamcan.com/common-questions-about-islam/why-does-quran-allow-muslim-men-to-have-four-
wives.shtml#.VFaQkPmUdjQ, last visited at 0144 hrs on 3rd Nov., 2014
9
See supra note 6
10
Dipanwita Roy v. Ronobroto Roy, Civil Appeal No. 9744 of 2014 (Arising out of SLP(C) No.5694 of 2013)

FACTS OF THE CASE:

This case had two parties: the husband, Mr. Ronobroto Roy (herein after referred to as Mr.
Roy) and his wife Mrs. Dipanwita Roy (herein after referred to as Mrs. Roy), who were
married in Kolkata, solemnised in the year 2003. The case in question arises from a divorce
petition filed by Mr. Roy under s. 13 of the Hindu Marriage Act 11. One of the grounds for
seeking divorce was the allegedly adulterous lifestyle of Mrs. Roy. Mr. Roy, in his petition
stated that his wife had not been performing her matrimonial obligations towards him (from
22nd September, 2009). Mrs. Roy lived in his household to lessen, or completely avoid
remarks from neighbours and a stigma attached with her. She had an extravagant lifestyle,
incurring heavy debts, burden of which fell on Mr. Roy. In addition to this, and most
importantly, Mr. Roy alleged that Mrs. Roy was in an adulterous relationship with one Mr.
Deven Shah. Mrs. Roy denied all these accusations, adding that she was continuing to fulfil
her matrimonial duties towards Mr. Roy. Mrs. Roy further affirmed that there was
continuance of cohabitation with Mr. Roy, the result of which was their son.
So, in order to substantiate his claim regarding her infidelity, and to establish that the male
child born was not his, Mr. Roy moved an application for a DNA test of himself and the child
in the Family Court. This application was dismissed by the Family Court. Mr. Roy then,
dissatisfied, approached the High Court at Kolkata. The Kolkata High Court ruled in favour
of Mr. Roy, giving permission for the DNA Test.
Mrs. Roy, aggrieved by this decision of the Kolkata High Court, appealed to the Supreme
Court by filing a Special Leave Petition instantly.
ISSUES PRESENTED:
The question raised in this case was whether the DNA test should be allowed so as to give
Mr. Roy a chance to prove his allegation against Mrs. Roy of infidelity, and therefore
establish grounds for divorce under s. 13(1)(i) of the Hindu Marriage Act, 1955. Legitimacy
of Mrs. Roy’s son is an incidental issue that will be raised, and inevitably addressed, in this
case.
11
Hindu Marriage Act, 1955, [No. 25 of 1955]

RULES APPLICABLE TO THE CASE:

Statutory Provisions:
1. S. 13(1)(ii) of the Hindu Marriage Act, 195512
“(1) Any marriage solemnized, whether before or after the commencement of the
Act, may, on a petition presented by either the husband or the wife, be dissolved
by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage had voluntary sexual intercourse
with any person other than his or her spouse;”
2. S 112 of the Indian Evidence Act, 187213
“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.”
The argument from Mrs. Roy’s side was that since her son was born during the subsistence of
a valid marriage between herself and Mr. Roy, it was sufficient proof to establish that Mr.
Roy was the father of her son.
3. S. 114 of the Indian Evidence Act, 197214
“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.”
Case laws:
1. Karapaya Servai v. Mayandi15- Interpretation of the word ‘access’ as used in s. 112 of
the Indian Evidence Act, 1872.
2. Goutam Kundu v. State of West Bengal and another16- Whether or not Courts can
order a blood test to further investigation
12
Ibid.
13
Indian Evidence Act, 1872, [No. 1 of 1872]
14
Ibid.
15
Karapaya Servai v. Mayandi, AIR 1934 SC 49
16
Goutam Kundu v. State of West Bengal and another, (1993) 3 SCC 418

3. Kamti Devi and another v. Poshi Ram17- Higher burden of proof on the husband
alleging that the child born during the subsistence of his marriage is not his child.
4. Sham Lal & Kuldeep v. Sanjeev Kumar and others18- Presumption of legitimacy of a
child born during the subsistence of a marriage, even with strong evidence regarding
adultery of wife.
5. Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women
and another19- Balancing interests while giving an order for DNA Test to determine
paternity.
6. Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another20- Conclusive Proof
by way of DNA Test in conflict with s. 112 of the Indian Evidence Act, 1872.
APPLICATION OF RULES:
s. 112 of the Indian Evidence Act, 1872 was interpreted by the Court using the case of
Karapaya Servai v. Mayandi21, wherein it was held by the Court that ‘access’ as used in this
section only referred to the possibility of marital intercourse. If it is established that such an
opportunity could have existed during the subsistence of the marriage, it was conclusive
proof that the child born is a legitimate child. This judgment was further upheld by the
Supreme Court in Chilukuri Venkateshwarly v. Chilukuri Venkatanarayana22.
In the instant case, Mr. Roy wished to undergo a DNA test himself, and make Mrs. Roy’s son
do the same so as to ascertain whether he was the biological father of the child. However,
Mrs. Roy stated that she was in a continuous matrimonial relationship with Mr. Roy, and had
factually cohabited with him, bending the presumption of legitimacy of the son in her favour.
In the case of Goutam Kundu v. State of West Bengal and another23, the Supreme Court held
that the Courts in India are not allowed to order a blood test as a matter of course, and such a
prayer for blood tests by way of an application cannot be entertained. If such an application
in made in relation to s. 112 of the Evidence Act, the husband must prove a very strong
17
Kamti Devi and another v. Poshi Ram, AIR 2001 SC 2226
18
Sham Lal & Kuldeep v. Sanjeev Kumar and others, (2009) 12 SCC 454
19
Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8
SCC 633
20
Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another, (2014) 2 SCC 576
21
See supra note 15
22
Chilukuri Venkateshwarly v. Chilukuri Venkatanarayana, 1954 SCR 424
23
See supra note 16

prima facie case of lack of access to the wife as mentioned in the provision. In this case, Mr.
Roy’s petition alleged that his wife was not cohabiting with him and therefore, he had no
access to her. Furthermore, Mrs. Roy filed an affidavit, stating that she was carrying out all
her marital obligations, including cohabiting with Mr. Roy. One of the major things that the
Court must take into consideration according to the Goutam Kundu’s case is what the child is
being branded as. For it is a matter of judicial policy to avoid illegitimizing a child as far as it
is possible. The Court went ahead to state that no one must be compelled to give a sample of
blood for analysis.
The case of Kamti Devi and another v. Poshi Ram24 was also taken into consideration, in
which case it was held that the husband, in proving that he had no access to his wife (for the
purposes of s. 112 of the Evidence Act) must also prove that his wife did not have access to
him. There is a legislative concern against illegitimizing a child, and Courts must strive to
conform with the same. The burden of proof here is higher than a preponderance of
probabilities, so as to secure the legislative interests. The standard of proof expected is that
there must be no minute chance, whatsoever, of the child being conceived by the husband.
In the case of Sham Lal & Kuldeep v. Sanjeev Kumar and others25, it was held by the
Supreme Court that the presumption is always strongly in favour of legitimacy of a child.
Even if there is strong evidence of adultery by the wife, and it will not repel the presumption
that is in favour of the child’s legitimacy. The mere possibility of the husband having access
to the wife is enough to disprove the illegitimacy of the child. In this case, the wife had
children while her marriage with her husband subsisted, even though they weren’t fathered by
him. However, since there was no proof pointing towards the husband not having access to
the wife, it was held that the children were legitimate. Similarly, in the instant case, the
legitimacy of Mrs. Roy’s son can be presumed, as apart from Mr. Roy’s allegations, there
was nothing to prove that he did not have access to Mrs. Roy.
While the Supreme Court took these arguments into consideration, they distinguished this
case from all the above cases by observing a key point: the motive behind the DNA test was
not to ascertain the legitimacy of the child born, it was to conclusively prove (or disprove) the
allegation made by Mr. Roy regarding the ‘adulterous lifestyle’ of Mrs. Roy. The decision
was regarding divorce as under s. 13(1)(i) of the Hindu Marriage Act, 1955; which did not
have anything to do with Mrs. Roy’s son’s legitimacy.
24
See supra note 17
25
See supra note 18

To bring a moral consideration into this, the Supreme Court brought into consideration the
case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women
and another26, observing that, when the paternity of a child is in question, it is a very
sensitive aspect. The Court must take all interests into consideration and balance them while
deciding such a case. Due care must be taken to not ‘bastardize’ the child. The Court must
apply the test of ‘eminent need’ to cases where a request is made for DNA testing to
determine the paternity of a child. “Should an issue arise before the matrimonial court
concerning the paternity of the child, obviously that court will be competent to pass an
appropriate order at the relevant time in accordance with law.”
The inaccurate results that might be arrived at by conforming with s. 112 of the Evidence Act
was also taken into account by the Supreme Court, bringing into the picture the case of
Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another27. In this case, the husband
alleged that he had no access to his wife, who left their matrimonial home and did not return
thereafter, his wife stated that she did leave her matrimonial home, but joined her husband
again. It could not be ascertained in a foolproof manner that the husband had no access to the
wife, and the marriage subsisted. So, the legitimacy of the child was presumed in this case.
However, the DNA test reports conclusively lay down that the husband was not the biological
father of the child. s. 112 of the Evidence Act lets the Court presume legitimacy of a child
with due legal procedure, it must also be duly considered that when the conclusive,
irrefutable truth is known, then there is no need for presumption in the first place. “Truth
must triumph is the hallmark of justice” after all.
Since the DNA test here conclusively dislodges the presumption as under s. 112 of the
Evidence Act, it may allowed. If it can be avoided, it must. However, in this case, for the
divorce petition so filed under s. 13(1)(i) of the Hidu Marriage Act, the ground being
adultery; the DNA test gives the best opportunity to Mr. Roy so as to prove his case, and the
best opportunity for Mrs. Roy to rebuke him.
While allowing the DNA test, however, keeping all the interests in mind; the Supreme Court
gave Mrs. Roy a caveat. She could choose to not comply with the direction of the High
Court, and the Courts may resort to s. 114 of the Evidence Act so as to determine the
allegation by way of a presumption:
26
See supra note 19
27
See supra note 20

“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.”
INTERPRETATION OF STATUTES:
The major statutory provisions in question in this case are:
1. S. 13(1)(ii) of the Hindu Marriage Act, 195528
“(1) Any marriage solemnized, whether before or after the commencement of the
Act, may, on a petition presented by either the husband or the wife, be dissolved
by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage had voluntary sexual intercourse
with any person other than his or her spouse;”
2. S 112 of the Indian Evidence Act, 187229
“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.”
Literal and Mischief Rules of Interpretation:
Literal Rule-
For the interpretation of the former, only the literal rule of interpretation was used by the
Supreme Court. It could only mean that voluntary sexual intercourse after solemnization of
marriage by any one of the spouses with a person who is not his/her spouse is a ground for
divorce: infidelity of either husband or wife married under the Hindu Laws is a ground for
divorce.
Mischief Rule-
Interpretation of s. 112 of the Indian Evidence Act in this case, however, is slightly more
complicated. There is a strict and literal interpretation of the statute in terms of determining
28
See supra note 11
29
Indian Evidence Act, 1872, [No. 1 of 1872]

whether the marriage is in continuance/ 280 days after dissolution of marriage. Contrariwise,
determining whether the parties have access to each other during the subsistence of the
marriage, the Mischief Rule is used by the Court, especially given the use of the case Kamti
Devi and another v. Poshi Ram30, where the legislative intent is taken into consideration by
the Court so as to reduce the ‘mischief’ of ‘bastardizing’, or denying the status of legitimacy
to an innocent child.
Mimamsa Rules of Interpretation:

Mimamsa rules of interpretation can be seen to have been used by the Supreme Court in the
instant case, for the interpretation of s. 112 of the Evidence Act.
Abhyasa-
The Abhyasa rule of interpretation indicates a repetitive process, which is used by the Court
while interpreting s. 112 of the Indian Evidence Act, 1872, to determine the permissibility of
a DNA Test to ascertain paternity of Mrs. Roy’s son. The requirement of proof for Mr. Roy
not having access to his wife even when the marriage subsisted is mentioned repeatedly.
Furthermore, the legislative intent of protecting innocent children from bastardization (due to
lapses of their parents) is heavily stressed upon by the Court, and repeatedly mentioned so as
to drive the point home.
Phala-
The Phala rule of interpretation has been used by the Supreme Court, which points towards
an uncommon nature of proof can be seen when the case of Kamti Devi and another v. Poshi
Ram31 and Sham Lal & Kuldeep v. Sanjeev Kumar and others32 were used to interpret s. 112
of the Evidence Act. There is an uncommon standard of proof required to establish that the
husband had no access to his wife (under s. 112 of the Evidence Act): he must not only prove
that he had no access to his wife while the marriage subsisted, but also that his wife had no
access to him. Further, even if there is strong evidence of the wife’s adultery, if the husband
has access to his wife or vice versa, legitimacy of the child is presumed.
Atharvada-
Further, as is the common practice of the Judiciary, the Atharvada rule of interpretation is
used, by taking eternal aid to interpret s. 112 of the Evidence Act. Previous decisions of the
30
See supra note 17
31
See supra note 17
32
See supra note 18

Supreme Court on the same issue are taken into consideration, while also having a moral
compass and recognizing the need to balance conflicting interests of the various stakeholders
(parties who will be affected by the decision of the Court) of the case at hand, including their
right to privacy, implicit in their Right to Life under A. 21 of the Indian Constitution.
CONCLUSION:
The Supreme Court in the instant case, ruled in favour of Mr. Roy, upholding the High
Court’s decision, directing Mrs. Roy to allow her son to take the DNA test. It was observed,
and rightly so, by the Court that the sole intent of Mr. Roy was not to determine the paternity
of the child and slander Mrs. Roy, but to prove his allegations against Mrs. Roy and obtain a
favourable decree of divorce. The Court made it a point to note that this way, Mrs. Roy
would have a chance to prove the allegations false beyond reasonable doubt. While doing so,
the Court tried to balance its decision with Right to Privacy, implicit under A. 21- Right to
Life and Personal Liberty, which is guaranteed by the Constitution of India. The Court gave
Mrs. Roy the option of not complying with the High Court’s directions. However, this meant
that s. 114 of the Evidence Act [Court may presume existence of certain facts] may
automatically become applicable to this case.
The apparent discord between the judgments in Bhabani Prasad Jena v. Convenor Secretary,
Orissa State Commission for Women and another 33 and Nandlal Wasudeo Badwaik v. Lata
Nandlal Badwaik and another34 was also resolved by the Court, stating that s. 112 of the
Evidence Act (it must be remembered) was penned at the time when the DNA and RNA
testing technology was non-existent. With the advancement in technology, truth could be
more easily ascertained. “Truth is the hallmark of Justice.” When the truth and
legislative/moral interests are in conflict, the Court must strike a balance in deciding the case.
In this manner, the Court protected the Right to Life and Personal Liberty guaranteed by the
Indian Constitution (under A. 21), by not setting down a precedent that interferes with the
Right to Privacy at large, and giving room for the judgment to differ based on the
circumstances of each case.
Having drawn attention to the applicability of this judgment and its ratio, I would go on to
mention that I am in agreement with the judgment delivered by the Supreme Court in this
33
See supra note 19
34
See supra note 20

case, as it follows the principles of natural justice, and in conformity with audi alteram
partem35, gives both the parties a chance to prove their side of the case.
35
Audi alteram partem- Hear the other side too/No man should be condemned unheard, Black's Law Dictionary-
Free Online Legal Dictionary (2nd Ed.)

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Research Project on the Case of Dipanwita Roy v.

RESEARCH PROJECT ON THE CASE OF

ANALYSIS OF THE CASE AND INTERPRETATION OF STATUTES

Legal Reasoning: Internal Assessment II

Legal Reasoning: Internal Assessment II Page

Legal Reasoning: Internal Assessment II Page

FACTS OF THE CASE:

Legal Reasoning: Internal Assessment II Page

RULES APPLICABLE TO THE CASE:

3. S. 114 of the Indian Evidence Act, 197214

Legal Reasoning: Internal Assessment II Page

Legal Reasoning: Internal Assessment II Page

Legal Reasoning: Internal Assessment II Page

Legal Reasoning: Internal Assessment II Page

1. S. 13(1)(ii) of the Hindu Marriage Act, 195528

Legal Reasoning: Internal Assessment II Page

Mimamsa Rules of Interpretation:

Legal Reasoning: Internal Assessment II Page

Legal Reasoning: Internal Assessment II Page

Legal Reasoning: Internal Assessment II Page

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