1

Evidence to decide paternity

Krishna Murari Yadav,

Law Centre-1

Summary of Provisions
1. Section 112
2. Section 4
3. Section 11
4. Section 114, Illustration (h)
Summary of cases

5. Goutam Kundu v. State of West Bengal1

6. Kamti Devi and Another v. Poshi Rani2
7. Sharda v. Dharmpal3
8. Sham Lal @ Kuldeep v. Sanjeev Kumar & Others4
9. Bhabani Prasad Jena v. Convener Secretary , Orissa State Commission for Women and
Another5
10. Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and Another6
11. Dipanwita Roy v. Ronobroto Roy7
Constitutional Right
12. Right to Privacy

Best Judgment
13. Dipanwita Roy v. Ronobroto Roy8

Some landmarks Judgment

Case Name of justice Date of judgment

Goutam Kundu v. State of West Justice Mohan May 14, 1993
Bengal (Division Bench)

Nandlal Wasudeo Badwaik v. Lata Justice Chandramauli Kr. January 6, 2014

Nandlal Badwaik and Another Prasad (Division Bench)

Dipanwita Roy v. Ronobroto Roy Hon’ble Justice October 15, 2014

Jagdish Singh Khehar
(Division Bench)

1
AIR 1993 SC 2295.
2
AIR 2001 SC 2226.
3
(2003) 4 SCC 493.
4
(2009) 12 SCC 454.
5
(2010) 8 SCC 633.
6
(2014) 2SCC 576.
7
AIR 2015 SC 418.
8
AIR 2015 SC 418.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.

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DU LL.B. 2019 Question 7 (20 Marks)

Proof based on DNA Test would be sufficient to dislodge a presumption under section 112 of the
Indian Evidence Act. Critically analyse the above statement with the help of judicial
pronouncement.
Bihar (J) 2014
Explain the law as to the proof of legitimacy of a child. Is it enough to prove that the child was
born during a valid marriage?
HJS 1998
P was wife of X. Two months after the death of X she marries Y. Five months after the marriage
a son Z is born. Who is legally the father of Z?
HJS 2011
A wife becomes pregnant through artificial insemination using the husband’s sperm without his
permission. Husband and wife have not met in two years. The child is born with severe
disabilities. Husband denies the child to be his. Decide.
RJS 1986
State the rule regarding presumption of legitimacy during marriage.
RJS 1988
How would you prove the legitimacy of a child?

Section 112. Birth during marriage, conclusive proof of legitimacy - The fact that any person
was born
i. during the continuance of a valid marriage between his mother and any man, or
ii. 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.

There are two conditions to proof legitimacy

Birth during marriage or within 280 days There was access

After Nandlal Wasudeo Badwaik Case, there are three ingredients of section 112
There are three conditions to proof legitimacy

Birth during marriage or within 280 days There was access DNA matching

Section 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.
Section 11. When facts not otherwise relevant become relevant. - Facts not otherwise relevant
are relevant–

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.

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(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of
any fact in issue or relevant fact highly probable or improbable.

UPSC (March 8, 2020

In which one of the following cases did the Supreme Court hold that the DNA test can be done to
determine paternity?
(a) Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr. (2014) 2 SCC 576
(b) Devesh Pratap Singh v. Sunita, AIR 1999 MP 174
(c) Kailash v. State of Madhaya Pradesh, AIR 2007 SC 107
(d) B.L. Sreedhar &Ors v. K.M. Munireddy & Ors , AIR 2003 SC 578.
Answer – A.

Goutam Kundu v. State of West Bengal & Another 9

(Supreme Court, May 14, 1993)
(Hon’ble JJ. S. Mohan, & A.M. Ahmadi)
Judgment was written by Hon’ble Justice S. Mohan.
Goutam Kundu married to second respondent on 16th January, 1990. They lived together for
some time until his wife left the matrimonial home to reside with her parents in order to prepare
for Higher Secondary Examination which commenced on 5.4.90

In the month of April, 1990 she conceived, on coming to know that she was pregnant, the
appellant and the family members did not want her to beget a child. Therefore she was forced to
undergo abortion which was refused by the second respondent. She came back to the
matrimonial home during Durga Pooja in the month of October, 1990. A female child was born
on 3.1.91. She was meted out cruel treatment both physically and mentally. She filed a petition
under section 125 Cr. P.C. for her and her child. She got maintenance order.
Husband filed petition for blood group test of his wife and the child. He challenged paternity of
daughter.
According to him if that could be established he would not be liable to pay maintenance. Petition
was dismissed. Appeal was filed before Supreme Court.
Reason -
The English law permitting blood test for determining the paternity of legitimacy could not be
applied in view of section 112 of the Evidence Act. Therefore it must be concluded that section
112 read with section 4 of the said Act debars evidence except in cases of non-access for
disproving the presumption of legitimacy and paternity.
Supreme Court – In this case Supreme Court observed following important points –

 English Law- The Family Reforms Act, 1969 conferred powers on the court to direct
taking blood test in civil proceedings in paternity cases. Courts were able to give
9
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KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.

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directions for the use of the blood test and taking blood samples from the child, the
mother and any person alleged to be the father.
 Since the passing of 1969 Act the general practice has been to use blood tests when
paternity is in issue. However, it is to be stated the court cannot order a person to submit
to tests but can draw adverse inferences from a refusal to do so.
 Indian Law – In India there is no special statute governing this. Neither the Criminal
Procedure Code nor the Evidence Act empowers the court to direct such a test to be
made.
 Blood Test - Blood grouping test is a useful test to determine the question of disputed
paternity. It can be relied upon by courts as a circumstantial evidence which ultimately
excludes a certain individual as a father of the child.
 However, it requires to be carefully noted no person can be compelled to give sample of
blood for analysis against her will and no adverse inference can be drawn against her for
this refusal.
 Purpose of petition - 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.
 Maxim- Pater est quem nuptioe demonstrant – Tsection 112 is based on the well-
known maxim pater est quem nuptioe demonstrant which means he is the father whom
the marriage indicates.
 Burden of prove- The presumption of legitimacy is this, that a child born of a married
woman is deemed to be legitimate, it throws on the person who is interested in making
out the illegitimacy, the whole burden of proving it. The law presumes both that a
marriage ceremony is valid, any that every person is legitimate.
 Rebuttable presumption of law - 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 preponderance of evidence, and not
by a mere balance of probabilities.
 Bhartiraj v. Sumesh Sachdeo & Ors.10 - Section 112 read with s.4 of the Evidence Act
debars evidence except in cases of non-access for disproving the presumption of
legitimacy and paternity. It is a rebuttable presumption of law, that a child born during
the lawful wedlock is legitimate, and that access occurred between the parties. This
presumption can only be displaced by a strong preponderance of evidence and not by a
mere balance of probabilities
 Meaning of “access” and “non-access” - Section 112 requires the party disputing the
paternity to prove non-access in order to dispel the presumption. “Access” and “non-
access” mean the existence or non-existence of opportunities for sexual intercourse; it
does not mean actual cohabitation.
 Conclusive proof under Section 4 - Conclusive proof means as laid down under section 4
of the Evidence Act.

Unfortunately conclusive proof under Section 4 was not discussed.

10
AIR 1986 Allahabad 259

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.

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 Conclusion regarding blood test to decide paternity-

From the above discussion it emerges:-
(1) that courts in India cannot order blood test as matter of course;
(2) Roving inquiry -wherever applications are made for such prayers in order to have roving
inquiry, the prayer for blood test cannot be entertained.
(3) Prima facie case - 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) Consequences - 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.

Conclusion
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. She was entitled to withdraw money of maintenance.

Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and Another11

(Date of Judgment - January 6, 2014)
[Hon’ble JJ. Chandramauli Kr. Prasad & Jagdish Singh Khehar]
Judgment was written by Hon’ble Justice Chandramauli Kr. Prasad.

Nandlal Wasudeo Badwaik happens to be the husband of respondent no. 1, Lata Nandlal
Badwaik and alleged to be the father of girl child Neha Nandlal Badwaik, respondent no. 2.

Petitioner Nandlal Wasudeo Badwaik Husband

Respondent no.1 Lata Nandlal Badwaik Wife
Respondent no.2 Neha Nandlal Badwaik Daughter
The marriage between them was solemnized on 30th of June, 1990 at Chandrapur. Wife filed an
application for maintenance under Section 125 of the Code of Criminal Procedure.
Claim of Wife- She alleged that she started living with her husband from 20th of June, 1996 and
stayed with him for about two years and during that period got pregnant. She
was sent for delivery at her parents’ place where she
gave birth to a girl child.
Claim of husband- Husband resisted the claim and alleged that the assertion of the wife that she
stayed with him since 20th of June, 1996 is false. He denied that Neha Nandlal Badwaik is his
daughter. After 1991, according to the husband, he had no physical relationship with his wife.
Magistrate -
The learned Magistrate accepted the plea of the wife and granted maintenance to the wife and to
the daughter.
11
(2014) 2SCC 576. It is also available at:https://main.sci.gov.in/jonew/judis/41129.pdf (last visited on March
30,2020)

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.

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High Court- It was unsuccessfully challenged before High Court.

Supreme Court- Finally through SLP matter reached to Supreme Court. Supreme Court
directed for DNA. In first DNA test was conducted in laboratory of Nagpur. According to report
Nandlal Wasudeo Badwaik was not biological father. For second DNA Test was requested by
wife and her daughter. Second DNA Test was conducted in Laboratory of Hyyderabad. Same
result came.
Two DNA Test

Test Laboratory Result

First DNA Test Regional Forensic It has submitted the result of DNA
(Request of Husband) Science Laboratory, testing and opined that “Nandlal
Nagpur Vasudev Badwaik is excluded to be the
biological father of Neha Nandlal
Badwaik”
Second DNA Test Central Forensic “Nandlal Wasudeo Badwaik can be
((Request of wife) Laboratory, excluded from being the biological
Hyderabad father of Miss Neha Nandlal Badwaik”,
Same result of both DNA Test

Argument of Respondent –
1. In the Gauatam Kndu case blood test was not allowed. Goutam Kundu v. State of
W.B., (1993) 3 SCC 418.
2. Kamti Devi v. Poshi Ram12 (May 11, 2001)13, Para 10,“. ………The result of a genuine
DNA test is said to be scientifically accurate. But even that is not enough to escape from
the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living
together during the time of conception but the DNA test revealed that the child was not
born to the husband, the conclusiveness in law would remain irrebuttable. This may look
hard from the point of view of the husband who would be compelled to bear the
fatherhood of a child of which he may be innocent. But even in such a case the law leans
in favour of the innocent child from being bastardised if his mother and her spouse were
living together during the time of conception……….”
3. Banarsi Dass v. Teeku Dutta14Para 13 - Yet another decision on which reliance has
been placed is the decision of Supreme Court in the case of Banarsi Dass v. Teeku Dutta.
In Banarsi Case Supreme Court observed,
 “We may remember that Section 112 of the Evidence Act was enacted at a time when the
modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic
acid (RNA) tests were not even in contemplation of the legislature.
 The result of a genuine DNA test is said to be scientifically accurate. But even that is
not enough to escape from the conclusiveness of Section 112 of the Evidence Act e.g. if a
husband and wife were living together during the time of conception but the DNA test
revealed that the child was not born to the husband, the conclusiveness in law would
remain irrebuttable.

12
(2001) 5 SCC 311
13
Kamti Devi v. Poshi Ram is available at: https://main.sci.gov.in/jonew/judis/17818.pdf (Last visited March 30,
2020)
14
(2005) 4 SCC 449

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.

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 This may look hard from the point of view of the husband who would be compelled to
bear the fatherhood of a child of which he may be innocent. But even in such a case the
law leans in favour of the innocent child from being bastardised if his mother and her
spouse were living together during the time of conception.
 Hence the question regarding the degree of proof of non-access for rebutting the
conclusiveness must be answered in the light of what is meant by access or non-access as
delineated above”.
Arguments of appellant-
1. The respondents, in fact, had not opposed the prayer of DNA test when such a prayer was
being considered. It is only after the reports of the DNA test had been received, which
was adverse to the respondents, that they are challenging it on the ground that such a test
ought not to have been directed.
2. In Goutam Kundu Case & Banarsi Dass Case Supreme Court considered whether order
for blood test should be given or not. But in this case on objection was raised at initial
statge. Objection was raised after coming report of DNA.

Issue - whether the DNA test would be sufficient to hold that Nandlal Wasudeo Badwaik is
not the biological father of Neha Nandlal Badwaik.
Decision- Supreme Court concluded following important points –
1. Two DNA test reports show that the Nandlal Wasudeo Badwaik is not the biological
father of the girl-child.
2. In Kamti Devi Case & Banarsi Dass Case Supreme Court accepted that the result of
a genuine DNA test is said to be scientifically accurate.
3. section 112makes the legitimacy of the child to be a conclusive proof, if the
conditions of this section are satisfied. It can be denied only if it is shown that the
parties to the marriage have no access to each other at any time when the child could
have been begotten.
4. Both parties admitted that the child has been born during the continuance of a valid
marriage.
Conflict

Section 112 Two Reports of DNA Test

The provisions of Section 112 of the Evidence The DNA test reports suggest that the
Act conclusively prove that Neha is the appellant is not the biological father.
daughter of the appellant.

Conflict between legal presumption and scientific evidence - scientific evidence prevails

Supreme Court observed, “We may remember that Section 112 of the Evidence Act was enacted
at a time when the modern scientific advancement and DNA test were not even in contemplation
of the Legislature. The result of DNA test is said to be scientifically accurate.
Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions
enumerated therein but the same is rebuttable. The presumption may afford legitimate means of
arriving at an affirmative legal conclusion.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.

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While the truth or fact is known, in our opinion, there is no need or room for any presumption.
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”.

Distinction between Legal fiction and Presumption of a fact

Legal fiction Presumption of a fact

Legal fiction assumes Presumption of a fact depends on satisfaction of certain
existence of a fact which circumstances. Those circumstances logically would lead to the
may not really exist. fact sought to be presumed.
Section 112 of the Evidence Act does not create a legal fiction but
provides for presumption.

“Truth must triumph”

Supreme Court observed, “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. “Truth must triumph” is the hallmark of justice”.
Maintenance
Appellant was not bound to give wife and her daughter.

Conclusion

Ground Important Points

Meaning Legal fiction and Presumption of a fact
Conflict In case of conflict between legal presumption and scientific
evidence, scientific evidence shall prevail if that evidence is
well established all over world.
Hallmark of justice Truth must triumph

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.

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Dipanwita Roy v. Ronobroto Roy15

(October 15, 2014, S.C. Division Bench)
(Hon’ble JJ. Jagdish Singh Khehar & R.K. Agrawal)
Hon’ble Justice Jagdish Singh Khehar wrote this judgment.
The petitioner-wife Dipanwita Roy and the respondent-husband Ronobroto Roy, were married at
Calcutta. Their marriage was registered on 9.2.2003. The present controversy emerges from a
petition filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the
'Act') by the respondent, inter alia, seeking dissolution of the marriage solemnised between the
petitioner-wife and the respondent-husband, on 25.1.2003.

1 Dipanwita Roy Wife

2 Ronobroto Roy Husband
3 Marriage in Calcutta 25.1.2003.
4 Registered 9.2.2003.
5 Divorce petition by husband u/s 13, HMA, 1955 adulterous life style of wife

That since 22.09.2007 the petitioner never lived with the respondent and did not share bed at all.
On a very few occasion since then the respondent came to the petitioner's place of residence to
collect her things and lived there against the will of all to avoid public scandal the petitioner did
not turn the respondent house on those occasion. That by her extravagant life style the
respondent has incurred heavy debts.

. She is leading a fast life and has lived in extra marital relationship with the said Mr. Deven
Shah and the respondent has given birth to a son. She denied.
husband moved an application on 24.7.2011 seeking a DNA test of himself and the male child
born to the petitioner-wife.

She asserted, that she had continuous matrimonial relationship with husband, and that, husband
had factually performed all the matrimonial obligations with her, and had factually cohabited
with her. The petitioner-wife accordingly sought the dismissal of the application filed by the
husband, for a DNA test of himself and the male child born to wife.

Family Court - The Family Court by an order dated 27.08.2012 dismissed the prayer made by
the husband, for conducting the afore-mentioned DNA test.
High Court - Husband approached the High Court at Calcutta. The High Court allowed the
petition filed by husband on 6.12.2012.
Supreme Court – SLP before Supreme Court was filed by wife.
Argument of wife-
1. Gautam Kundu case (1993) & Kamti Devi Case (2001)
2. Sham Lal @ Kuldeep vs. Sanjeev Kumar and others, (2009) 12 SCC 454 – Supreme
Court observed, “Once the validity of marriage is proved then there is strong presumption
about the legitimacy of children born from that wedlock. The presumption can only be
15
AIR 2015 SC 418. This case is available at: https://main.sci.gov.in/jonew/judis/42021.pdf (Last visited March 31,
2020).

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.

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rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot
be displaced by mere balance of probabilities or any circumstance creating doubt. Even
the evidence of adultery by wife which though amounts to very strong evidence, it, by
itself, is not quite sufficient to repel this presumption and will not justify finding of
illegitimacy if husband has had access”.
3. Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women
and another, (2010)16, Supreme Court held as under:
 “In a matter where paternity of a child is in issue before the court, the use of DNA
test is an extremely delicate and sensitive aspect.
 One view is that when modern science gives the means of ascertaining the paternity
of a child, there should not be any hesitation to use those means whenever the
occasion requires.
 Other view is that the court must be reluctant in the use of such scientific advances
and tools which result in invasion of right to privacy of an individual and may not
only be prejudicial to the rights of the parties but may have devastating effect on the
child. Sometimes the result of such scientific test may bastardise an innocent child
even though his mother and her spouse were living together during the time of
conception.
 When there is apparent conflict between the right to privacy of a person not to
submit himself forcibly to medical examination and duty of the court to reach the
truth, the court must exercise its discretion only after balancing the interests of the
parties and on due consideration whether for a just decision in the matter, DNA test
is eminently needed.
 The State Commission has no authority, competence or power to order DNA test.
Despite the consequences of a DNA test, this Court has concluded, that it was
permissible for a Court to permit the holding of a DNA test, if it was eminently needed,
after balancing the interests of the parties

Respondent –
1. In several above discussed cases it has been accepted that result of a genuine DNA test is
scientifically accurate.
2. Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another17–The result of DNA
test is said to be scientifically accurate. 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.
Supreme Court –
1. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena and
Nandlal Wasudeo Badwaik Case that depending on the facts and circumstances of the
case, it would be permissible for a Court to direct the holding of a DNA examination,
to determine the veracity of the allegation(s), which constitute one of the grounds, on
which the concerned party would either succeed or lose. There can be no dispute, that
if the direction to hold such a test can be avoided, it should be so avoided.
2. Opportunity for both (Husband & Wife) –It is opportunity for both. DNA testing is
the most legitimate and scientifically perfect means, which the husband could use, to

16
(2010) 8 SCC 633.
17
(2014) 2 SCC 576.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.

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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.
3. Option for wife and right to privacy –Order of High Court Supreme Court held
that order passed by High Court for DNA Test is correct. This order was modified
and two options were given for wife regarding DNA Test. These are –
First Option (DNA Test) –In case, she accepts the direction issued by the High
Court, the DNA test will determine conclusively dispute regarding paternity.
Second Option (Presumption u/s. 114)- In second option , she declines to comply
with the direction issued by the High Court, the allegation would be determined by
the concerned Court, by drawing a presumption of the nature contemplated in Section
114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof.
This will protect right to privacy without sacrifice cause of justice.

Section 114. Court may presume existence of certain facts – 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.

Lovely Judgment
I am impressed from this judgment. This judgment by giving option to other party has
established cordially relation between scientific evidence (DNA Test) and right to
privacy.

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, LC-1, FACULTY OF LAW, D.U.