Whether the court can direct DNA test in Criminal case U/S 498A of IPC?

 iii. In Inayath Ali v. State of Telangana, MANU/SC/1538/2022, the question before this Court was whether a DNA test of two minor children could be ordered by a Court, with a view to facilitate proof of allegations Under Sections 498A, 323, 354, 506 and 509 of Indian Penal Code, 1860. This Court speaking through Aniruddha Bose, J. at the outset took note of the fact that the dispute was essentially one relating to dowry related offences, and that paternity of the children of the complainant was not directly related to the allegations. The complainant therein sought for a direction to conduct DNA test of her two minor children, in order to establish that they were born as a result of her forced relationship with her brother-in-law. Rejecting the complainant's plea, this Court held as under as to the power of Courts to subject children to DNA testing, in proceedings in which their status is not required to be examined:

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023.

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What is the test of eminent need?

 ii. In Bhabani Prasad Jena, this Court emphasised that a direction to use DNA profiling technology to determine the paternity of a child, is an extremely delicate and sensitive aspect. Therefore, such tests must be directed to be conducted only when the same are eminently needed. That DNA profiling in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption Under Section 112 of the Evidence Act; pros and cons of such order and the test of 'eminent need' whether it is not possible for the court to reach the truth without use of such test. It was further declared that a Court may direct that a DNA test be conducted, to conclusively determine paternity, only when there is a strong prima-facie case in favour of the person seeking such a direction.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023.

Read full Judgment here: Click here

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Whether the court can order DNA test of child to prove adultery of wife?

 Use of DNA profiling technology as a means to prove adultery:

11. With the advancement of science, DNA profiling technology which is a tool of forensic science can, in case of disputed paternity of a child by mere comparison of DNA obtained from the body fluid or body tissues of the child with his parents, offer infallible evidence of biological parentage. But, it is not always necessary to conduct a DNA test to ascertain whether a particular child was born to a particular person, however, the burden of proof is on the husband who alleges illegitimacy. He has to establish the fact that he has not fathered the child born to his wife which is a negative plea by positive proof in accordance with Section 112 of the Evidence Act.

11.1. A Family Court, no doubt, has the power to direct a person to undergo medical tests, including a DNA test and such an order would not be in violation of the right to personal liberty Under Article 21 of the Constitution, vide Sharda. However, the Court should exercise such power only when it is expedient in the interest of justice to do so, and when the fact situation in a given case warrants such an exercise. Thus, an order directing that a minor child be subjected to DNA test should not be passed mechanically in each and every case.

11.2. This Court has, while considering questions connected with Section 112 of the Evidence Act, consistently expressed the stand against DNA tests being ordered on a mere asking. Further, the law does not contemplate use of DNA tests as exploratory or investigatory experiments for determining paternity. The following decisions of this Court are highly instructive in determining the circumstances under which a DNA test may be ordered by a Court in matters involving disputed questions of paternity:

26. From the above discussion it emerges:

(1) that courts in India cannot order blood test as a 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 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) 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.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023.

Read full Judgment here: Click here

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Supreme Court: Children's Right Not To Have Their Legitimacy Questioned Frivolously is Part Of Their Privacy Right

 The first factor, which, in our opinion, is of significance, is that in the judgment under appeal, blood sampling of the children was directed, who were not parties to the proceeding nor were their status required to be examined in the complaint of the Respondent No. 2. This raised doubt on their legitimacy of being borne to legally wedded parents and such directions, if carried out, have the potential of exposing them to inheritance related complication. Section 112 of the Evidence Act, also gives a protective cover from allegations of this nature. {Para 7}

8. In our opinion, the Trial Court as also the Revisional Court had completely ignored the said factor and proceeded as if the children were material objects who could be sent for forensic analysis. The other factor, in our opinion, which was ignored by the said two Courts is that the paternity of the children was not in question in the subject-proceeding.

9.  Merely because something is permissible under the law cannot be directed as a matter of course to be performed particularly when a direction to that effect would be invasive to the physical autonomy of a person. The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial Court's direction.

The right of children not to have their legitimacy questioned frivolously in Courts of Law:

17. Further, children have the right not to have their legitimacy questioned frivolously before a Court of Law. This is an essential attribute of the right to privacy. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1308 of 2023 

Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia

Hon'ble Judges/Coram:

V. Ramasubramanian and B.V. Nagarathna, JJ.

Authored By : B.V. Nagarathna, V. Ramasubramanian

B.V. Nagarathna, J.

Decided On: 20.02.2023.

Citation: MANU/SC/0148/2023

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Kerala HC: The modern concept of access and non-access for drawing presumption of legitimacy of the child as per S 112 of Evidence Act

When can it be said that the child was begotten? It is certainly not the date of marriage. It is certainly not the date of delivery. It is the date on which the sperm from the father should have met the ovum of the mother. The date of fertilization of the ovum is certainly the date on which the child could have been begotten. The date of successful sexual intercourse which led to fertilization is certainly the date on which the child can be said to have been begotten for the purpose of Sec. 112. All we intend to note now is that even in a case where the presumption under Sec. 112 operates, there is burden on the court to ascertain the date on which the child in question could have been begotten. That date has to be ascertained with the help of all relevant inputs. All relevant evidence - direct, indirect, circumstantial, scientific and expert testimony, will all have to be looked into to ascertain the date on which the child could have been begotten. It is only then that it can be ascertained whether there was access or non-access of the man and the woman to each other on the said date/period.

45. Access cannot be decided in a vacuum. Access on the date when the child could have been begotten has to be ascertained. Science and technology now permits the courts to precisely ascertain the date on which the fertilization of the sperm and ovum could have taken place. It is perfectly permissible even in a case where the presumption under Sec. 112 is sought to be drawn for the court to consider all evidence to ascertain the date on which the child in question could have been begotten. The age of the foetus can be authentically ascertained today with the help of scientific inputs. It is not necessary any more to rely merely on the oral evidence of the mother (or any one else) about the date of the LMP to ascertain the gestational age of the foetus. The period/date on which the child was begotten can be authentically and specifically ascertained. We repeat that access or non-access has to be considered with specific reference to the time when the child could have been begotten. 

46. That takes us to the last contention. The larger question is raised as to what is "access". At a time when science and technology had not developed as to enable courts to ascertain scientifically (and not on the basis of oral evidence) whether the child was born on account of the sexual intercourse between a man and his wife, the expression "access" was used in Sec. 112 of the Evidence Act. "Access" in Sec. 112 as understood hitherto is certainly "the possibility of and the opportunity for sexual intercourse between the man and woman". No better and acceptable evidence on that aspect could be authentically secured in yester years and hence access in Sec. 112 was always understood to mean the opportunity for or the possibility of sexual intercourse between the spouses. But should the expression "access" be understood in such vague, general and non-specific terms any more, is a question which courts will have to consider seriously. By access what is really meant is the accessibility of the ovum for the sperm. That is the only way to understand the expression "access" in a modern knowledge society where authentic ascertainment as to whether sperm from a man had caused fertilization of the ovum of the woman is scientifically possible.

The D.N.A test result can certainly be accepted as evidence of access or non access of the man to the woman, relevant to the context. It is not necessary hence to squander the advantage of such authentic scientific expert evidence even while considering the play of Section 112 of the Evidence Act. It is possible in the light of the modern scientific developments to understand the expression "access" in Section 112 as possibility of access of the sperm to the ovum. 

50. We find ourselves faced with similar dilemma as Justice Ormrod in [(1966) 1 All ELR 356] cited by Sri C.S. Dias, the learned Amicus Curiae. We extract the same below:

When as I think in these days, it is possible to enable the courts to do justice on a footing of fact and not to do injustice on a basis of presumption, I should myself greatly hope that no difficulties will ever be put in the way of a child's blood being supplied for blood grouping. I know that it is a sad thing to bastardise a child, but there are graver wrongs; and this is a matter which I am sure all those concerned will approach with great caution, because there is nothing more shocking than that injustice should be done on the basis of a legal presumption when justice can be done on the basis of fact. That is the first thing.

51. We do also feel that the first concern of any court must certainly be to avoid injustice being done on the basis of a legal presumption when justice can be done on the basis of fact. No court should consider itself a prisoner to the language of a statutory provision or precedents of a bygone era when interpretation consistent with the current legally cognizable inputs and realities can help the court to render justice, to the satisfaction of the judicial conscience. We are hence tempted not to consider ourselves prisoners to the interpretation of Section 112 which was accepted in the yester years and feel persuaded to understand the expression 'access' in a more meaningful, effective, vibrant and contextually relevant manner to enable the courts to do justice.

It is hence that we think that a realistic understanding of the expression 'access' would help courts to dispense better quality justice. Access, we agree, must be reckoned as the possibility/opportunity of the sperm to access the ovum and not merely physical proximity of the spouses or their mere opportunity to have sexual intercourse.If such access is contra indicated conclusively by the D.N.A test, that can certainly be reckoned as evidence of non access which will help the husband to walk out of the Padmavyuha of Section 112 through the only exit door of non access recognised under Section 112.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal Nos. 75 of 2008 & 31 of 2010

Decided On: 13.04.2012

 Rajesh Francis  Vs.  Preethi Roslin

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Kerala HC: Court can not draw presumption of legitimacy of a child under Sec. 112 of Evidence Act unless the marriage of his parents is declared valid

It is fundamental and axiomatic that valid marriage must be proved before the presumption under Sec. 112 can be invoked. Proof of valid marriage is sine qua non for invocation of the presumption under Sec. 112. Whatever the period of their cohabitation, however loyal and committed the partners may be to each other and however convincing the evidence of their faithful cohabitation may be, the presumption under Sec. 112 cannot be invoked or drawn unless solemnization of valid marriage is proved. Proof of valid marriage is the bedrock on which the presumption under Sec. 112 is built.

32. Such a presumption cannot obviously have any role or play before the validity of the marriage is established. To establish the validity of such a marriage, the presumption under Sec. 112 cannot obviously be invoked. In a case like the instant one where the validity of the marriage is assailed on the ground that the wife was pregnant through another on the date of marriage, this presumption cannot have any play at all. It would be a classic instance of putting the cart before the horse, if this presumption were to be invoked for ascertaining the validity of the marriage itself. We have, in these circumstances, no hesitation to agree with the learned Counsel for the appellant that the presumption under Sec. 112 cannot be invoked in a case where the very validity of the marriage is in question. Only after the validity of the marriage is considered and decided, the presumption under Sec. 112 can be invoked. To decide whether the marriage is valid or not, the presumption under Sec. 112 cannot obviously be invoked.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal Nos. 75 of 2008 & 31 of 2010

Decided On: 13.04.2012

 Rajesh Francis  Vs.  Preethi Roslin

Hon'ble Judges/Coram:

 Mr. Justice R. Basant &Mr. Justice K. Surendra Mohan

Citation: MANU/KE/0523/2012,2012 SCCONLINE Ker 5356

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Leading judgment of Supreme court on appreciation of DNA evidence

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. 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.

18. 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.

19. 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. "Truth must triumph" is the hallmark of justice.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 24 of 2014 (Arising out of Special Leave Petition (Crl.) No. 8852 of 2008)

Decided On: 06.01.2014

 Nandlal Wasudeo Badwaik  Vs. Lata Nandlal Badwaik and Ors.

Hon'ble Judges/Coram:

C.K. Prasad and J.S. Khehar, JJ.

Citation: (2014) 2 SCC 576

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Supreme Court: DNA test should not be directed in routine course to ascertain adultery of wife

Deciding the issue of proving infidelity of a spouse, the bench of J.S. Khehar and R.K. Agrawal, JJ held that DNA test can be conducted to determine the veracity of the allegations of adultery. However, considering the fact that the said test will automatically determine the issue of legitimacy, the Court held that the presumption of legitimacy as given under Section 112 of the Evidence Act, 1872 will not be disturbed and that if the direction to hold such a test can be avoided, it should be so avoided as the legitimacy of the child should not be put to peril.

In the present case, the husband has sought divorce from his wife due to alleged infedility by her and had also named the person has fathered the child born to his wife, thereby making an application for DNA test to prove the paternity of the child in order to prove the alleged infidelity. The Court, hence explained the importance of DNA test by stating that DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. The Court also said that DNA test should also simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the husband, and to establish that she had not been unfaithful, adulterous or disloyal.

The Court, hence, held that the wife shall be given the liberty to comply with or disregard the order of DNA test and in case, she declines to undergo the said test, the Court shall draw presumption as per Illustration (h) of Section 114 of the Evidence Act, 1872.

“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9744 OF 2014

(Arising out of SLP(C) No.5694 of 2013)

Dipanwita Roy Vs  Ronobroto Roy

Citation;AIR 2015 SC418

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