APARNA AJINKYA FIRODIA versus AJINKYA ARUN FIRODIA

[2023] 4 S.C.R.

APARNA AJINKYA FIRODIA

AJINKYA ARUN FIRODIA

(Civil Appeal No.1308 of 2023)

FEBRUARY 20, 2023

[V. RAMASUBRAMANIAN AND B.V. NAGARATHNA, JJ.]

Evidence Act, 1872 – s.112 – Birth during marriage, conclusiveproof of legitimacy – DNA test of minor child – Circumstances underwhich may be directed – Principles enumerated.

Constitution of India – Right to privacy – DNA testing ofchildren – Held: Children have the right not to have their legitimacyquestioned frivolously before Court of Law – This is an essentialattribute of the right to privacy.

DEvidence Act, 1872 – s.112 – Presumption u/s.112 – Absenceof plea of “non-access” to dislodge such presumption – Effect of –Respondent-husband filed petition for divorce on the ground ofadultery against appellant-wife – Sought direction to subject theson to DNA testing – Granted – Correctness of – Held: Once amarriage is held to be valid, there is strong presumption as to theEchildren born from that wedlock as being legitimate – Thispresumption can be rebutted only by strong, clear and conclusiveevidence to the contrary – The conclusive presumption of paternityof child born during the subsistence of valid marriage is thatthe child is that of the husband and it cannot be rebutted by mereFDNA test report – What is necessary to rebut is the proof of non-access at the time when the child could have been begotten, that is,at the time of its conception – However, in the present case, no pleawas raised by the husband as to non-access in order to dislodgethe presumption u/s.112 – Therefore, no prima facie case made outby the respondent to justify direction to conduct DNA test on theGson – Also, the respondent specifically claimed that he is inpossession of call recordings/transcripts, and the daily diary of theappellant pointing to her infidelity therefore, this is not case wherea DNA test would be the only possible way to ascertain the truthregarding the appellant’s adultery – Impugned judgment of the HighHCourt and the order of the Family Court set aside –

[Per V. Ramasubramanian, J. (Concurring)] – The question as to thepermission of DNA test is to be analysed through the prism of thechild and not through the prism of the parents – The child cannotbe used as pawn to show that the mother of the child was living inadultery – It is always open to the respondent-husband to prove theadulterous conduct of the wife by other evidence but, the child’sright to identity should not be allowed to be sacrificed.

Evidence Act, 1872 – ss.112, 114 illustration (h) – Whetheran adverse presumption can be drawn under illustration (h) to s.114,as to the wife’s adulterous conduct if she refuses to comply with adirection for the child to undergo DNA test – Respondent-husbandclaimed that he found out the alleged adulterous conduct of theappellant-wife 3 years after the birth of the second son, filed petitionfor divorce on the ground of adultery – Sought direction to subjectthe second son to DNA testing, granted – Challenged by appellant– Relying on Dipanwita Roy case, respondent contended that he isnot questioning the legitimacy of the child, but alleging adulteryagainst the appellant and therefore, on her refusal to subject thechild to DNA test, presumption u/s.114(h) can be drawn againsther – Held: The presumption under the section is discretionary andnot mandatory – Further, the facts in Dipanwita Roy were socompelling, so as to justify direction to conduct DNA test as thehusband therein had taken specific plea of non-access, unlike inthe present case – In the instant case, there is no dispute about thepaternity of the son as admittedly he was born during the continuouscohabitation of the parties and thus during the subsistence of avalid marriage– On facts, no adverse inference can be drawn asagainst the appellant u/s.114 on her refusal to subject her son to aDNA test – Allegation of adultery has to be proved by the respondentde hors the issue of paternity of the son – [Per V. Ramasubramanian,J. (Concurring)] – s.114 has nothing to do with, nor is in connectionwith conclusive proof of legitimacy dealt with by s.112 – Both s.112and s.114 fall under different compartments – s.114(h) has noapplication to case where mother refuses to make the childundergo DNA test – Furthermore, on facts, respondent had accessto the wife both at the time when the child was begotten and for afull period of three years even thereafter – Therefore, the conclusiveproof u/s.112 has actually come into play in this case – Contentionof the respondent that what is sought to be invoked is only s.114(h)and not s.112 is rejected.

Evidence Act, 1872 – s.112 – Question of legitimacy of thechild, burden of proof – Held: Since s.112 creates presumption oflegitimacy that child born during the subsistence of marriage isdeemed to be legitimate, burden is cast on the person who questionsthe legitimacy of the child.

BEvidence Act, 1872 – s.112 – Principle underlying – “access”,“non-access” – Meaning – Held: Principle underlying s.112 is toprevent an unwarranted enquiry as to the paternity of the childwhose parents, at the relevant time had “access” to each other –“access” or “non-access” does not mean actual co-habitation butmeans the “existence” or “non-existence” of opportunities for sexualCrelationship – s.112 refers to point of time of birth as the crucialaspect and not to the time of conception – The time of conception isrelevant only to see whether the husband had or did not have accessto the wife – Operation of the conclusive presumption can be avoidedby proving non-access at the relevant time.DInternational Law – International Conventions/Treaties– TheConvention on Rights of Child – Best interests of child – Rights toPrivacy, Autonomy and Identity of Children – Discussed.Evidence Act, 1872 – s.112 – Object of – Held: child shouldnot be lost in its search for paternity – Precious childhood andEyouth cannot be lost in quest to know about one’s paternity –Therefore, the wholesome object of Section 112 of the Evidence Actwhich confers legitimacy on children born during the subsistenceof valid marriage, subject to the same being rebutted by cogentand strong evidence, is to be preserved – finding as to illegitimacy,Fif revealed in DNA test, effect on the child psychologically,discussed.

Evidence Act, 1872 – ss.4, 112 – Held: combined readingof ss.4 and 112 would show that once the party questioning thelegitimacy of the birth of child shows that the parties to the marriageGhad no access to each other, then the benefit of s.112 is not availableto the party invoking s.112 – However, if such party is not able toprove that he had no access to the other party to the marriage, thenthe shield of s.112 protects the other party to such an extent that itcannot be pierced by any amount of evidence in view of theprohibition contained in s.4.H

Words & Phrases:

“may presume”, “shall presume” and “conclusive proof” –Discussed – Evidence Act, 1872 – ss.4, 112 and 114.

“inference”, “adverse inference” – Meaning of – Discussed.

Maxims – Pater est quem nuptiae demonstrant – Held: Questionsas to illegitimacy of child, are only incidental to the claim ofdissolution of marriage on the ground of adultery or infidelity –Allowing DNA tests to be conducted on routine basis, in order toprove adultery, would amount to redefinition of the aforesaid maxim,which means, the father is he whom the nuptials point out.

Allowing the appeal, the Court

HELD: 1. The principle underlying Section 112 is toprevent an unwarranted enquiry as to the paternity of the childwhose parents, at the relevant time had “access” to each other.In other words, once marriage is held to be valid, there is astrong presumption as to the children born from that wedlock asbeing legitimate. This presumption can be rebutted only by strong,clear and conclusive evidence to the contrary. Section 112 of theEvidence Act is based on the presumption of public morality andpublic policy. Since Section 112 creates presumption oflegitimacy that child born during the subsistence of marriageis deemed to be legitimate, burden is cast on the person whoquestions the legitimacy of the child. Further, “access” or “non-access” does not mean actual cohabitation but means the“existence” or “non-existence” of opportunities for sexualrelationship. Section 112 refers to point of time of birth as thecrucial aspect and not to the time of conception. The time ofconception is relevant only to see whether the husband had ordid not have access to the wife. Thus, birth during the continuanceof marriage is “conclusive proof” of legitimacy unless “non-access” of the party who questions the paternity of the child atthe time the child could have been begotten is proved by thesaid party. conjoint reading of Section 112 of the Evidence Act,with the definition of “conclusive proof” under Section 4 thereof,makes it amply clear that child proved to be born during valid

Amarriage should be deemed to be legitimate child except whereit is shown that the parties to the marriage had no access to eachother at any time when the child could have been begotten orwithin 280 days after the dissolution of the marriage and themother remains unmarried, that fact is the conclusive proof thatthe child is the legitimate son of the man. Operation of theBconclusive presumption can be avoided by proving non-accessat the relevant time. The latter part of Section 112 of the EvidenceAct indicates that if person is able to establish that the partiesto the marriage had no access to each other at any time when thechild could have been begotten, the legitimacy of such child canCbe denied. That is, it must be proved by strong and cogentevidence that access between them was impossible on accountof serious illness or impotency or that there was no chance ofsexual relationship between the parties during the period whenthe child must have been begotten. Thus, unless the absence ofaccess is established, the presumption of legitimacy cannot beDdisplaced. Thus, where the husband and wife have co-habitedtogether, and no impotency is proved, the child born from theirwedlock is conclusively presumed to be legitimate, even if thewife is shown to have been, at the same time, guilty of infidelity.The fact that woman is living in adultery would not by itself beEsufficient to repel the conclusive presumption in favour of thelegitimacy of child. Therefore, shreds of evidence to the effectthat the husband did not have intercourse with the wife at theperiod of conception, can only point to the illegitimacy of childborn in wedlock, but it would not uproot the presumption oflegitimacy under Section 112. The presumption under SectionF112 can be drawn only if the child is born during the continuanceof valid marriage and not otherwise. “Access” or “non-access”must be in the context of sexual intercourse that is, in the sexualsense and therefore, in that narrow sense. Access may forinstance, be impossible not only when the husband is away duringGthe period when the child could have been begotten or owing toimpotency or incompetency due to various reasons or the passageof time since the death of the husband. Thus, even though thehusband may be cohabiting, there may be non-access betweenthe husband and the wife. One of the instances of non-accessdespite co-habitation is the impotency of the husband. If theH

husband has had access, adultery on the wife’s part will not justifya finding of illegitimacy. Thus, “non-access” has to be proved asa fact in issue and the same could be established by direct andcircumstantial evidence of an unambiguous character. Thus, therecould be “non-access” between the husband and wife despiteco-habitation. Conversely, even in the absence of actual co-habitation, there could be access. Section 112 was enacted at atime when modern scientific tests such as DNA tests, as well asRibonucleic acid tests (‘RNA’, for short), were not incontemplation of the legislature. However, even the result of agenuine DNA test cannot escape from the conclusiveness of thepresumption under Section 112 of the Evidence Act. If husbandand wife were living together during the time of conception butthe DNA test reveals that the child was not born to the husband,the conclusiveness in law would remain irrebuttable. What wouldbe proved, is adultery on the part of the wife, however, thelegitimacy of the child would still be conclusive in law. In otherwords, the conclusive presumption of paternity of child bornduring the subsistence of valid marriage is that the child is thatof the husband and it cannot be rebutted by mere DNA testreport. What is necessary to rebut is the proof of non-access atthe time when the child could have been begotten, that is, at thetime of its conception. [Paras 8.1-8.7][704-D-G; 705-B-H; 706-A-E]

Sham Lal vs. Sanjeev Kumar, (2009) 12 SCC 454 :[2009] 5 SCR 1049; Kamti Devi vs. Poshi Ram, (2001)5 SCC 311 : [2001] 3 SCR 729 – relied on.

2.1 For the purpose of reaching one conclusion, the Courtcan rely on factual presumption unless the presumption isdisproved or dispelled or rebutted. However, Illustration (h) toSection 114 has given enough discretionary power to the Courtto draw certain inferences from the facts. The presumption underthe section is discretionary and not mandatory. The use of thephrase “may presume” in the said provision indicated that thatthe Courts of Justice are to use their own sense and experiencein judging the effect of particular facts, and in determining whethera presumption is to be drawn therefrom. Presumptions areestablished on the basis of facts, and the Court enjoys thediscretionary power, either to presume fact or not. The facts in

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ADipanwita Roy were so compelling, so as to justify direction toconduct DNA test. In the said case, the husband had taken aspecific plea of non-access. Further, the Court accepted that aDNA test would be the only manner in which the case of adulterycould be proved. Having regard to the compelling need for aDNA test in the said case, in order to establish the truth, thisBCourt directed that if the appellant-wife therein refused to complywith the direction of the Court regarding DNA test, the allegationsof adultery as against her would be determined by drawing anadverse inference as contemplated under Illustration (h) ofSection 114 of the Evidence Act. However, such an observationCmade in the said case cannot be regarded as precedent whichcan be applied to all cases in strait jacket manner wherein thewife refuses to comply with the direction of the Court regardingDNA test. Facts of the present case neither warrant directionto conduct DNA test of Master ‘X’, nor do they justify drawingan adverse inference as against the appellant-wife, under SectionD114 of the Evidence Act, on her refusal to subject her son to aDNA test. Inferences, whether adverse or otherwise, are to bedrawn by the Court, on consideration of facts and circumstancesof each individual cases. Hence, the judgment of this Court inDipanwita Roy is to be read in the aforesaid context. In the instantcase, there is no dispute about the paternity of Master ‘X’ asEeven during the course of arguments it was admitted that Master‘X’ was born during the continuous cohabitation of the partiesand thus during the subsistence of valid marriage. The issue ofpaternity of Master ‘X’ is alien to the issue of adultery on thepart of the appellant herein. Master ‘X’ being legitimate childFof the parties herein has nothing to do with the alleged adulteryon the part of the appellant herein. Hence, the judgment of thisCourt in Dipanwita Roy is of no assistance to the respondentherein.[Paras 9.2, 10.1][707-F-H; 710-H; 711-A; 710-F-G; 711-B, E-F, H; 712-A]GDipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 :[2014] 11 SCR 553 – distinguished.

Black’s Law Dictionary, 9th Edition – referred to.

2.2 The following principles could be culled out as to thecircumstances under which DNA test of minor child may beHdirected to be conducted: i. That DNA test of minor child is

not to be ordered routinely, in matrimonial disputes. Proof byway of DNA profiling is to be directed in matrimonial disputesinvolving allegations of infidelity, only in matters where there isno other mode of proving such assertions. ii. DNA tests of childrenborn during the subsistence of valid marriage may be directed,only when there is sufficient prima-facie material to dislodge thepresumption under Section 112 of the Evidence Act. Further, ifno plea has been raised as to non-access, in order to rebut thepresumption under Section 112 of the Evidence Act, DNA testmay not be directed. iii. Court would not be justified inmechanically directing DNA test of child, in case where thepaternity of child is not directly in issue, but is merely collateralto the proceeding. iv. Merely because either of the parties havedisputed factum of paternity, it does not mean that the Courtshould direct DNA test or such other test to resolve thecontroversy. The parties should be directed to lead evidence toprove or disprove the factum of paternity and only if the Courtfinds it impossible to draw an inference based on such evidence,or the controversy in issue cannot be resolved without DNA test,it may direct DNA test and not otherwise. In other words, only inexceptional and deserving cases, where such test becomesindispensable to resolve the controversy the Court can directsuch test. v. While directing DNA tests as means to proveadultery, the Court is to be mindful of the consequences thereofon the children born out of adultery, including inheritance-relatedconsequences, social stigma, etc. [Para 12][716-D-H; 717-A-C]

3. Children have the right not to have their legitimacyquestioned frivolously before Court of Law. This is an essentialattribute of the right to privacy. Courts are therefore required toacknowledge that children are not to be regarded like materialobjects, and be subjected to forensic/DNA testing, particularlywhen they are not parties to the divorce proceeding. [Para17][718-H; 719-A]

4. The concept of privacy for child may not be equivalentto that of an adult. However, the evolving capacity of childrenhas been recognised and the Convention acknowledges thecontrol that individuals, including children, have over their ownpersonal boundaries and the means by which they define who

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Athey are in relation to other people. Children are not to bedeprived of this entitlement to influence and understand theirsense of self simply by virtue of being children. [Para 21][720-D]

5. parent may, in the best interests of the child, choosenot to subject child to DNA test. It is also, antithetical to theBfundamentals of the right to privacy to require person todisclose, in the course of proceedings in rem, the medicalprocedures resorted to in order to conceive. The reasons for theparent’s refusal may be several, and hence, it is not prudent todraw an adverse inference under Section 114 of the EvidenceAct, in every case where parent refuses to subject the child toCa DNA test. [Para 22.3][723-D-E]

6. Questions as to illegitimacy of child, are only incidentalto the claim of dissolution of marriage on the ground of adulteryor infidelity. Allowing DNA tests to be conducted on routinebasis, in order to prove adultery, would amount to redefinition ofDthe maxim, “Pater est quemnuptiae demonstrant” which means,the father is he whom the nuptials point out. While dealing withallegations of adultery and infidelity, request for DNA test ofthe child, not only competes with the presumption under Section112, but also jostles with the imperative of bodily autonomy. [ParaE24][724-B-C]

Dukhtar Jahan vs. Mohammed Farooq, (1987) 1 SCC624 : [1987] 1 SCR 1086 – relied on.

7. The case of the Respondent-husband is that if DNAtest is allowed and the same reveals that he is not the biologicalFfather of ‘X’, as corollary, it would be proved that the Appellant-wife committed adultery. This Court does not find favour withthe approach suggested by the Respondent-husband to proveadultery, for the following reasons: i. It is not in dispute thatMaster ‘X’, the son stated to be born to the Appellant-wife fromGthe wedlock, was born in the year 2013. DNA testing, cannot beused as short cut to establish infidelity that might have occurredover decade ago or subsequently after the birth of Master ‘X’.ii. In the circumstances of the present case, DNA test wouldnot be the only way in which the truth of the matter can be

established. The respondent-husband has categorically claimedthat he is in possession of call recordings/transcripts and the dailydiary of the appellant, which may be summoned in accordancewith law to prove the infidelity of the appellant. Therefore, itseems that the respondent is in position to attempt to makeout case based on such evidence, as to adultery/infidelity onthe part of the appellant. iii. No plea has been raised by therespondent-husband herein as to non-access in order to dislodgethe presumption under Section 112 of the Evidence Act.Therefore, no prima-facie case has been made out by therespondent which would justify direction to conduct DNA testof Master ‘X’. iv. No adverse inference can be raised in the instantcase regarding the legitimacy or paternity of Master ‘X’ vis-à-visthe appellant herein, on her declining to subject Master ‘X’ to apaternity test. Further, on the appellant declining to subjectMaster ‘X’ to paternity test, no adverse inference can be drawnas regards the alleged adultery on the part of the appellant hereincan be raised. The allegation of adultery has to be proved by therespondent herein de hors the issue of paternity of Master ‘X’.[Para 26][724-F-H; 725-A-D]

Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik,(2014) 2 SCC 576 : [2014] 1 SCR 120 – distinguished.

Sharda vs. Dharmpal, (2003) 4 SCC 493 : [2003] 3SCR 106; Goutam Kundu vs. State of West Bengal,(1993) 3 SCC 418 : [1993] 3 SCR 917; Goutam Kundu,Bhabani Prasad Jena vs. Convenor Secretary, OrissaState Commission for Women, (2010) 8 SCC 633 : [2010]9 SCR 457; Inayath Ali vs. State of Telangana, MANU/SC/1538/2022; Ashok Kumar vs. Raj Gupta, (2022) 1SCC 20 – relied on.

Perumal Nadar (dead) by Lrs. vs. Ponnuswami, (1970)1 SCC 605 : [1971] 1 SCR 49; Uday Chand Dutt vs.Saibal Sen, (1987) Supp SCC 506 – referred to.

Re L., (1968) 1 All ER 20; B. (B.R.) vs. B.(J.), (1968) 2All ER 1023 – referred to.

Sarkar on Law of Evidence, 20th Edition; Rayden andJackson on Divorce and Family Matters (1983) Vol. I,at Pg. 1054 – referred to.

APer V. RAMASUBRAMANIAN, J. (Concurring)

1.1 While dealing with situation where presumption interms of Illustration (h) under Section 114 is sought to be raised,the Court has to examine whether the refusal of the person toanswer, is on account of the fear that the answer may produce anBunfavourable result to him in relation to the matter in issue ordue to the fear that such an answer might cause loss to him in amatter unconnected to it. Section 112 deals with something wherethe existence of fact is taken to be conclusive proof, withoutany possibility for the disputing party to lead evidence fordisproving the same. The only escape route, available for personCto deprive another person of the benefit of Section 112, is toshow that the parties to the marriage did not have access to eachother at the time when the child could have been begotten. Section114 has nothing to do with, nor is in connection with conclusiveproof of legitimacy dealt with by Section 112. Both Section 112Dand Section 114 fall under different compartments. The word“presumption” itself is not used in Section 112. The expressionused in Section 112 is “conclusive proof”. Therefore, by virtue ofSection 4, no evidence shall be allowed to be given for the purposeof disproving it. If one of the parties to the marriage shows thathe had no access to the other at the time when the child couldEhave been begotten, then Section 112 itself does not get attracted.On the contrary, if the parties have had access to each other atthe relevant point of time, the fate of the question relating tolegitimacy is sealed. [Paras 17, 21 and 22][732-E; 735-A-D]

1.2 In the case on hand, the very pleading of the respondentFin his petition for divorce before the Family Court is that thesecond child-Master ‘X’ was born on 17.7.2013 and that therespondent came to know about the alleged adulterous behaviorof the appellant herein, only on 14.9.2016. The pleading of therespondent to the effect that after September 2016, he has hadGno physical relationship with the appellant-wife means that hehas at least had access to the wife both at the time when the childwas begotten and for full period of three years even thereafter.Therefore, the conclusive proof under Section 112 has actuallycome into play in this case. [Paras 24, 25][735-F; 736-A-B]

1.3 The stage at which the wife may refuse to subject thechild to DNA, would arise only after the Court comes to theconclusion that DNA test should be ordered. [Para 26][736-C]

1.4 An adverse inference, in law, can be drawn only againstthe person who refuses to answer question. In the case on hand,the appellant has dual role to play, namely, that of therespondent’s wife and that of Master X’s mother. If the appellantdoes or refuses to do something, for the purpose of deriving abenefit to herself, an adverse inference can be drawn against her.But in her capacity as mother and natural guardian if the appellantrefuses to subject the child to DNA test for the protection of theinterests and welfare of the child, no adverse inference of adulterycan be drawn against her. By refusing to subject the child to DNAtest, she is actually protecting the best interests of the child. Forprotecting the best interests of the child, the appellant-wife maybe rewarded, but not punished with an adverse inference. Bytaking recourse to Section 114(h), the respondent cannot throwthe appellant to catch-22 situation. Therefore, Section 114(h)has no application to case where mother refuses to make thechild undergo DNA test. What comes out of DNA test, as themain product, is the paternity of the child, which is subjected to atest. Incidentally, the adulterous conduct of the wife also standsestablished, as by-product, through the very same process.Section 114 uses only the word “may” and not the word “shall”.Therefore, the constraints articulated in the exposition toIllustration (h) under Section 114 may dissuade the Court not topresume at all. Hence, the contention of the respondent that whatis sought to be invoked is only Section 114(h) and not Section112 is rejected. [Paras 28-32][736-F-H; 737-A-E]

2. The question as to whether DNA test should bepermitted on the child, is to be analysed through the prism of thechild and not through the prism of the parents. The child cannotbe used as pawn to show that the mother of the child was livingin adultery. It is always open to the respondent husband to proveby other evidence, the adulterous conduct of the wife, but thechild’s right to identity should not be allowed to be sacrificed.[Para 33][737-F-G]

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ADipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365 :[2014] 11 SCR 553; Sharda vs. Dharmpal (2003) 4SCC 493 : [2003] 3 SCR 106; Sahara India Real EstateCorporation Limited & Ors. vs. Securities and ExchangeBoard of India & Anr. (2012) 10 SCC 603 : [2012] 12SCR 256 – referred to.B

From the Judgment and Order dated 22.11.2021 of the High Courtof Judicature at Bombay in CWP No.7077 of 2021.

GHuzefa Ahmadi, Sr. Adv., Sanyat Lodha, Ms. Aakashi Lodha,Ravi Raghunath, Sanjana, Advs. for the Appellant.

Kapil Sibal, Sr. Adv., Rohan Rajadaksha, Ms. Percis Ankleshwari,Shlok Chandra, Vikrant Pachnanda, Ms. Aparajita Jamwal, RishabhParikh, Anupam Sambhus, Ms. Arunima Kumari, Mukul Katyal, KeshavHGarg, Advs. for the Respondent.

The Judgments of the Court were delivered by

NAGARATHNA, J.

Leave granted.

2. Indian Law has proceeded on the assumption that parents arepersons who beget child or who assume the legal obligations ofparenthood through formal adoption of child. Under the Indian legalspectrum, husband is strongly presumed to be the father of childborn to his wife. Thus, there is strong presumption regarding thepaternity of child. This presumption can be overcome only by evidenceprecluding any procreative role of the husband, such as by showing thatthe husband and wife had no access to each other at the relevant timeof possible conception. In the absence of proof of non-access, the lawconsiders the husband’s paternity to be conclusively established if theycohabited when the child was likely to have been conceived. By allowingrebuttal with proof, that the husband could not have been the biologicalfather, the marital presumption was implicitly premised, in part, on apolicy linking parenthood with biological reproduction and on anassumption about the probability of the husband’s genetic contribution.The presumption protects social parentage over biological parentage.Scientific proof now makes it possible to know with virtual certaintywhether man is genetically related to child. As result, Courts areroutinely confronted with husbands seeking to disavow their paternitybased on newly acquired DNA evidence, notwithstanding them havinglong performed the social role of father to child. The short question inthe present appeal is as to how Court can prevent the law’s tidyassumptions linking paternity with matrimony, from collapsing, particularlywhen parties are routinely attempting to dislodge such presumptions byemploying modern genetic profiling techniques.

Factual Background:

3. The present controversy emerges from an application (Exhibit84/B) filed by the respondent-husband on 9[th] November, 2020 beforethe Principal Judge Family Court, Pune, praying for direction to subjectMaster “X”, the second child born to the appellant-wife, during thesubsistence of her marriage with the respondent, to deoxyribonucleicacid test (“DNA test” for short), with view to ascertain his paternity.The said application was filed by the respondent-husband in petitionfor divorce filed by him under Sections 13(1)(i) and (ia) of the Hindu

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AMarriage Act, 1955, being Petition No. P.A. 639 of 2017. The same wasallowed by the Family Court, Pune by an order dated 12[th] August, 2021and confirmed by the High Court of Judicature at Bombay by way ofthe impugned judgment dated 22[nd] November, 2021 in Civil Writ PetitionNo.7077 of 2021.

B4. Succinctly stated, the facts leading to the present appeal are asfollows:

4.1. The appellant and the respondent got married as per Hindurites and rituals at Pune, on 23[rd] November, 2005. Their first child, Master“Y”, was born on 21[st] December, 2009. During the subsistence of theirCmarriage, second son, namely, Master “X”, was born on 17[th] July,2013.

4.2. On 1[st] June, 2017, the respondent-husband, filed petition fordivorce under Sections 13(1)(i) and (ia) of the Hindu Marriage Act,1955 being Petition No.P.A. 639 of 2017 and petition seeking custodyDof their two children, being P.D. No. 17 of 2017 against the appellant-wife, before the Family Court, Pune. In the petition for divorce, therespondent, inter-alia, alleged that the appellant-wife was in anadulterous relationship with one Kshitij Bafna, and the respondentdiscovered the same on 14[th] September, 2016 when he found that certainintimate messages had been exchanged between the appellant and KshitijEBafna.4.3. On 9[th] November, 2020, the respondent filed an application,being application 84/B, before the Family Court, Pune seeking directionto subject Master “X”, the second child born to the appellant-wife, duringthe subsistence of her marriage with the respondent to DNA testing,Fwith view to ascertain the child’s paternity. The contents of the saidapplication may be summarised as under:

i.That Master “X”, the second son born to the appellant-wife, during the subsistence of her marriage with therespondent, was born out of an adulterous relationshipGbetween the appellant and Kshitij Bafna.

ii.That the respondent discovered that the appellant had beenin an adulterous relationship with Kshitij Bafna, while hewas using her phone on 14[th] September, 2016. That on beingconfronted about the same the appellant admitted to theHadulterous relationship with Kshitij Bafna.

iii.That the respondent, being unwilling to accept the truth asconfirmed by the appellant, decided to further investigatethe issue of Master “X’s” paternity and hence, caused aDNA test to be conducted at DNA Labs India, privatelaboratory. The DNA Test report dated 24[th] November, 2016indicated as follows:

“The alleged father lacks genetic markers that must becontributed to the child by the biological father. Theprobability of paternity is 0%”.

iv.That the respondent was certain that Master “X” was bornas result of the adulterous relationship of the appellant.However, in order to substantiate his contention as to theappellant’s infidelity as ground for divorce, it wasnecessary to conduct DNA test which would reveal thatthe respondent was not the biological father of Master “X”.

v.That DNA test is the most legitimate and scientificallyperfect means, that the respondent could use to establishthe assertion of infidelity on part of the appellant. That inthe absence thereof it would be impossible for therespondent to conclusively establish the assertions madeby him in the pleadings.

vi.That the respondent had access to telephonic conversationsbetween him and Kshitij Bafna, wherein Kshitij Bafna hadexpressed his anger at the respondent for intimating his wifei.e., the wife of Mr. Bafna, of his illicit relationship with theappellant. That Kshitij Bafna when confronted about thepaternity of Master “X”, did not deny that the child wasborn to him and the appellant. That the appellant was in thehabit of maintaining daily diary wherein she had pennedher thoughts as to her adulterous relationship. Having regardto the sensitive nature of the conversation and the contentsof the diary, the respondent sought for the leave of the FamilyCourt to produce the recording, the diary and otherevidences, if necessary, at the time of final hearing of thedivorce proceedings.

4.4. The appellant filed an affidavit in reply, opposing the applicationfiled by the respondent seeking direction to conduct DNA test of Master

A“X”, inter-alia, contending that the respondent had not made out prima-facie case requiring the Court to exercise its discretion to direct DNAtest to be conducted as prayed for.

4.5. By an order dated 12[th] August, 2021, the Family Court, Pune,allowed the application filed by the respondent seeking DNA test ofBMaster “X” and further observed that in the event that the appellantfails to comply with the directions of the Court, the allegations of adulteryas against her would be determined by drawing an adverse inference ascontemplated under Illustration (h) of Section 114 of the Indian EvidenceAct, 1872 (hereinafter “Evidence Act” for the sake of brevity). Thesalient findings of the Family Court may be encapsulated as under:C

i.That the respondent had filed the application seeking directionto conduct DNA test of Master “X”, only with view toestablish adultery on the part of the appellant and not todisparage the paternity of the minor child.

ii.On perusal of the DNA Test Report issued by DNA LabsDIndia dated 24[th] November, 2016, the Family Courtconcluded that the possibility of the respondent being thebiological father Master “X” has been excluded. That inview of Section 14 of the Family Courts Act, 1984 the saidReport can be read as evidence.

Eiii.Reliance was placed on the decision of this Court in NandlalWasudeo Badwaik vs. Lata Nandlal Badwaik, (2014)2 SCC 576, to hold that Section 112 of the Evidence Actwas enacted at time when scientific advancement in thefield of DNA test was not as sophisticated. That althoughFSection 112 raises presumption of conclusive proof onthe satisfaction of the conditions enumerated therein, thesame is rebuttable. That where the truth of fact is known,there is no need or room for any presumption. Thus, whenthere is conflict between conclusive proof envisagedunder law and proof based on scientific advancementGaccepted by the world community to be correct, the lattermust prevail over the former.

iv.That the respondent had made out prima-facie casejustifying the Court’s exercise of discretionary power todirect conducting DNA Test by collecting blood samples ofHthe respondent and the minor child.

v.That the respondent would be able to substantiate hisallegations of adultery/infidelity on the part of the appellant,only if permission is granted for conducting DNA test.That it would be impossible for the respondent to establishand confirm the assertions made in the pleadings, other thanby way of DNA test. That DNA Testing is the mostlegitimate and scientifically perfect means, that the husbandcould use, to establish his assertion of infidelity.

vi.That in the event that the appellant accepts the directionissued by the Court, the DNA Test will determineconclusively the veracity of the accusations levelled by therespondent against her. In case, she declines to comply withthe direction issued by the Court, the allegations would bedetermined by the Court, by drawing presumption of thenature contemplated in Section 114 of the Indian EvidenceAct, particularly, in terms of illustration (h) thereof.

vii.That by adopting the above course, the issue of infidelityalone would be determined, without expressly disturbing thepresumption contemplated under Section 112 of the IndianEvidence Act.

4.6. Aggrieved by the Order dated 12[th] August, 2021 passed bythe Family Court, Pune, the appellant filed Writ Petition, being CivilWrit Petition No.7707 of 2021, before the High Court of Judicature atBombay, assailing the same, inter-alia, on the ground that the FamilyCourt failed to appreciate that strong prima-facie case is sine quanon for directing DNA profiling and that there was no evidence to supportthe respondent’s prayer for DNA test. Further, that the order of theFamily Court was contrary to the presumption provided under Section112 of the Indian Evidence Act and the provisions of the Hindu MarriageAct, 1955 and was contrary to the fundamental rights guaranteed underArticle 21 of the Constitution of India.

4.7. By the impugned judgment dated 22[nd] November, 2021 theHigh Court dismissed the Writ Petition filed by the appellant herein andupheld the order of the Family Court dated 12[th] August, 2021. The pertinentfindings of the High Court may be epitomized as under:

i.That the respondent had carried out DNA Test of Master“X” at DNA Labs India and had produced the report of the

Asame dated 24[th] November, 2016 wherein the possibility ofthe respondent being the biological father of Master “X”was stated to be 0%. Thus, the very foundation for takingrecourse of moving an application for direction to conductthe DNA Test was expressly and strongly laid down by therespondent.B

ii.As regards the question as to whether an order directingDNA test of the appellant’s minor child would encroach onthe legal or Constitutional rights of the appellant, the HighCourt held that fundamental rights guaranteed under Article21 of the Constitution of India are always subject toCreasonable restrictions. Reliance was placed on Shardavs. Dharmpal, (2003) 4 SCC 493 to hold thata matrimonialcourt has the power to direct person to undergo medicaltests and such direction would not amount to violationof the personal liberty guaranteed under Article 21 of theDConstitution of India.

iii.That Section 112 of the Indian Evidence Act provides forthe presumption of conclusive proof of legitimacy. However,such presumption is rebuttable. One way of rebutting suchpresumption is by pleading and establishing strong primaEfacie case like the one demonstrated by the respondent.

iv.That Court is required to be sensitive to the fact that butfor the medical/DNA test, it would be impossible for therespondent to establish the assertions made in the pleadings.

v.That the Family Court had been adequately sensitive inFtaking note of the statement of the respondent to the effectthat he would not disown Master “X” even if the paternitytest establishes that he is not the biological father. That therespondent had also made prayers for the custody of thesaid child, therefore, the interest of the child was notGjeopardized in allowing the DNA test.

vi.That if the appellant failed to comply with the directions ofthe Family Court, the Court can draw presumption of thenature contemplated under illustration (h) of Section 114 ofthe Evidence Act.

4.8. Aggrieved by the order of the Family Court dated 12[th] August,2021, as well as the impugned judgment, the appellant has assailed thesame in the present appeal.

Submissions:

5. We have heard learned Senior Counsel, Sri Huzefa Ahmadi forthe appellant-wife, and learned Senior Counsel, Sri Kapil Sibal for therespondent-husband and perused the material on record.

6. At the outset, Sri Huzefa Ahmadi submitted that the High Courthad erred in upholding the direction of the Family Court, Pune, to conductthe DNA test of the younger son of the parties. That the respondent hadfailed to satisfy the test of “eminent need” as laid down by this Court inGoutam Kundu vs. State of West Bengal, (1993) 3 SCC 418 whereinit was observed that the Indian law leans towards legitimacy and that adirection for DNA test should be passed only after balancing the interestsof the parties, including the rights of the child, and if such test iseminently needed. That in the present case, the respondent had failed todemonstrate that the direction for conducting DNA test could not havebeen avoided, and therefore, the direction to conduct the same waserroneous.6.1. Learned Senior Counsel for the appellant further contendedthat the High Court erred in observing that the interest of the child wouldnot be jeopardized by simply relying on the statement of the respondentthat he would not disown his son. That even if such statement is takenat its face value, it will not be enough to protect the child from societalrepercussions associated with the illegitimacy of his birth (if any) andthat any direction to conduct DNA test would be contrary to the interestsof the child and the same is being sought by the respondent to secure hisinterests alone, without any consideration of the interest of the child. Itwas next contended that the rationale behind the Indian Law leaningtowards legitimacy is that the DNA test would impinge on the right toprivacy of child and any issue as to legitimacy will have major societalrepercussions on the innocent child. Further, balancing the interests ofthe child and the respondent does not justify passing direction forconducting the DNA test of the child.

6.2. Sri Huzefa Ahmadi, learned senior counsel next submittedthat the respondent had failed to establish any case demonstrating non-access at the relevant time, so as to dislodge the presumption underSection 112 of the Evidence Act and thus, no direction could have been

ABC

Apassed to conduct DNA test of the child. That the language of Section112 of the Evidence Act and the decisions of this Court in GoutamKundu, Bhabani Prasad Jena vs. Convenor Secretary, Orissa StateCommission for Women, (2010) 8 SCC 633 and Ashok Kumar vs.Raj Gupta, (2022) 1 SCC 20, would establish that party seeking adirection to conduct DNA test is required to bring on record strong prima-Bfacie evidence of non-access vis-a-vis the presumption under Section112 of the Evidence Act. That clear and satisfactory evidence of non-access is needed to rebut the presumption under Section 112 of theEvidence Act, vide Perumal Nadar (dead) by Lrs. vs. Ponnuswami,(1970) 1 SCC 605.C6.3. That in the instant case, Master “X” was born on 17[th] July,2013, during the continuance of marital relations between the partiesand that the respondent does not deny access to the appellant at therelevant time.

6.4. That direction to conduct DNA test cannot be passedDbased on vague material. That the respondent has sought to rely on theDNA test report dated 24[th] November, 2016. However, the authenticityof the said DNA Report has to be established during trial and any relianceplaced on the same before the authenticity of the same is proved would,in future, amount to giving license to party (such as the respondentEherein), seeking direction to conduct DNA test, to produceunauthenticated reports and this would have devastating effect on thechild.

6.5. With respect to the assertion of the respondent that he cameacross messages on the phone of the petitioner in the month of September2016, disclosing the appellant’s adulterous actions, it was submitted onFbehalf of the appellant that no evidence or material in support of thesame had been produced by the respondent and thus, no reliance can beplaced on the same.

6.6. That it would be incorrect to state that simply because DNAtests are scientifically accurate, the same may be routinely conducted toGdislodge the presumption of legitimacy under Section 112 of the EvidenceAct.

6.7. It was averred that the issue of legitimacy is inextricablylinked to the allegations of adultery and the same cannot be lightly trifledwith, merely at the request of the respondent. Therefore, the presumptionHof legitimacy must be preserved by Courts.

With the aforesaid submissions, learned Senior Counsel, SriHuzefa Ahmadi has prayed that the instant appeal be allowed and theimpugned judgment of the High Court, as well as the order of the FamilyCourt dated 12[th] August 2021, be set aside.

7. Per contra, learned Senior Counsel Sri Kapil Sibal, appearingon behalf of the respondent-husband submitted that the impugnedjudgment of the High Court and the order of the Family Court dated 12[th]August 2021 have been passed on an unimpeachable appreciation of thefacts of the case, as well as the relevant law, and therefore, the same donot call for interference by this Court.

7.1. Sri Kapil Sibal asserted that the instant appeal is an abuse ofthe process of law and is not maintainable either on law or based on thefacts of the present case. That the present appeal has been filed with aview to mask the adulterous conduct of the appellant, in the guise of thechild’s welfare.

7.2. Reliance was placed on the decision of this Court in UdayChand Dutt vs. Saibal Sen, (1987) Supp SCC 506 to contend that inthe face of two concurrent findings of the Family Court and the HighCourt, such findings may not be interfered with by this Court.

7.3. Learned Senior Counsel appearing on behalf of the respondentreferred to Section 41 of the Evidence Act and stated that judgment ina matrimonial proceeding is judgment in-rem and therefore, to arriveat just and proper judgment in the pending Divorce Petition, anyevidence to bring out the truth is germane to the matter and has to bepermitted to be brought in and cannot be ignored. That the issue is oneof fair trial from the point of view of both the parties.

7.4. It was next submitted that Section 112 of the Evidence Actwould not come in the way of the Courts directing DNA tests to beconducted in deserving cases. Reliance was placed on the decision ofthis Court in Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 tocontend that this Court in the said case laid down the process to befollowed by Courts in directing DNA tests, while at the same timepreserving the presumption under Section 112 of the Evidence Act. Thata similar approach must be permitted to be adopted in the present case.

7.5. It was further contended that in the present case, the mostmaterial piece of evidence to establish the allegations of adultery is theDNA test and the same cannot be shut out on the ground of sensitivity

Aor privacy. Reliance was placed on the decision of this Court in Shardato contend that in the said case it was categorically held that an orderpassed by matrimonial court ordering person to undergo medicaltest would not be violative of the right of personal liberty as envisaged inArticle 21 of the Constitution of India. That therefore, the reluctanceand hesitation of the appellant to allow the DNA test corroborates theBallegations of adultery against her and brings forth the need to conductthe said DNA Test.

7.6. That the Family Court passed the order directing DNA testafter having due regard to the prima facie evidence brought before thesaid court and the High Court has rightly confirmed the order passed byCthe Family Court. The Report of the privately conducted DNA test filedbefore the Family Court, in unequivocal terms rules out the possibility ofthe respondent being the biological father of the minor child. The saidReport strongly lays down the foundation for taking recourse of movingan application for directions to conduct the DNA test. That under SectionD14 of the Evidence Act, Family Courts have been given vast powers totake into consideration any report, statement, documents, and informationwhich may assist the court to deal effectively with the dispute and thus,the Family Court was right in accepting the report of the privatelyconducted DNA test. With the aforesaid averments, it was prayed that the instant appealbe dismissed as being devoid of merit and an abuse of the process oflaw, and the impugned judgment as well as the order of the Family Court,be affirmed.

Points for Consideration:FHaving heard learned Senior Counsel for the respective parties,and upon perusal of the record, the following points would arise for ourconsideration:

i.Whether, the Family Court, Pune and the High Court ofJudicature at Bombay, have rightly appreciated Section 112Gof the Evidence Act in directing that DNA test of Master“X” be conducted?

ii.Whether, on non-compliance on the part of the appellant ofthe direction to subject Master “X” to DNA test, allegationsof adultery as against her could be determined by drawing

an adverse inference as contemplated under Illustration (h)of Section 114?

iii.What order?

Legal Scheme:

8. For an easy and immediate reference, the relevant provisionsof the Evidence Act are extracted hereinunder:

“4.‘Conclusive proof’.—When one fact is declared by this Actto be conclusive proof of another, the Court shall, on proof of theone fact, regard the other as proved, and shall not allow evidenceto be given for the purpose of disproving it.

112. Birth during marriage, conclusive proof of legitimacy. ––The fact that any person was born during the continuance of avalid marriage between his mother and any man, or within twohundred and eighty days after its dissolution, the mother remainingunmarried, shall be conclusive proof that he is the legitimate sonof that man, unless it can be shown that the parties to the marriagehad no access to each other at any time when he could have beenbegotten.

114. Court may presume existence of certain facts. –– The Courtmay presume the existence of any fact which it thinks likely tohave happened, regard being had to the common course of naturalevents, human conduct and public and private business, in theirrelation to the facts of the particular case.

The Court may presume ––

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(h) that if man refuses to answer question which he is notcompelled to answer by law, the answer, if given, would beunfavourable to him; ….…”

8.1. According to Sarkar on Law of Evidence, 20[th] Edition, in theinterest of health, order and peace in society, certain axiomaticpresumptions have to be drawn. One such presumption is the conclusivepresumption of paternity under Section 112 of the Evidence Act. Section112 embodies the rule of law that the birth of child during the continuance

Aof valid marriage or within 280 days (i.e., within the period of gestation)after its dissolution shall be “conclusive proof” that the child is legitimateunless it is established by evidence that the husband and wife did not orcould not have any access to each other at any time when the childcould have been conceived. The object of this provision is to attachunimpeachable legitimacy to children born out of valid marriage. WhenBa child is born during the subsistence of lawful wedlock, it would meanthat the parents had access to each other. Therefore, the Section speaksof “conclusive proof” of the legitimate birth of child during the periodof lawful wedlock.

The latter part of the Section is with reference to proof of theCnon-access of the parents of the child to each other. Thus, the presumptionof legitimacy of the birth of the child is rebuttable by way of strongevidence to the contrary.

The principle underlying Section 112 is to prevent an unwarrantedenquiry as to the paternity of the child whose parents, at the relevantDtime had “access” to each other. In other words, once marriage is heldto be valid, there is strong presumption as to the children born fromthat wedlock as being legitimate. This presumption can be rebutted onlyby strong, clear and conclusive evidence to the contrary. Section 112 ofthe Evidence Act is based on the presumption of public morality andEpublic policy vide Sham Lal vs. Sanjeev Kumar, (2009) 12 SCC 454.Since Section 112 creates presumption of legitimacy that child bornduring the subsistence of marriage is deemed to be legitimate, burdenis cast on the person who questions the legitimacy of the child.

8.2. Further, “access” or “non-access” does not mean actual co-habitation but means the “existence” or “non-existence” of opportunitiesFfor sexual relationship. Section 112 refers to point of time of birth as thecrucial aspect and not to the time of conception. The time of conceptionis relevant only to see whether the husband had or did not have accessto the wife. Thus, birth during the continuance of marriage is “conclusiveproof” of legitimacy unless “non-access” of the party who questions theGpaternity of the child at the time the child could have been begotten isproved by the said party.

8.3. It is necessary in this context to note what is “conclusiveproof” with reference to the proof of the legitimacy of the child, asstated in Section 112 of the Evidence Act. As to the meaning ofH“conclusive proof” reference may be made to Section 4 of the Evidence

Act, which provides that when one fact is declared to be conclusiveproof of another, proof of one fact, would automatically render the otherfact as proved, unless contra evidence is led for the purpose of disprovingthe fact so proved. conjoint reading of Section 112 of the EvidenceAct, with the definition of “conclusive proof” under Section 4 thereof,makes it amply clear that child proved to be born during valid marriageshould be deemed to be legitimate child except where it is shown thatthe parties to the marriage had no access to each other at any timewhen the child could have been begotten or within 280 days after thedissolution of the marriage and the mother remains unmarried, that factis the conclusive proof that the child is the legitimate son of the man.Operation of the conclusive presumption can be avoided by proving non-access at the relevant time.

8.4. The latter part of Section 112 of the Evidence Act indicatesthat if person is able to establish that the parties to the marriage had noaccess to each other at any time when the child could have been begotten,the legitimacy of such child can be denied. That is, it must be proved bystrong and cogent evidence that access between them was impossibleon account of serious illness or impotency or that there was no chanceof sexual relationship between the parties during the period when thechild must have been begotten. Thus, unless the absence of access isestablished, the presumption of legitimacy cannot be displaced.

Thus, where the husband and wife have co-habited together, andno impotency is proved, the child born from their wedlock is conclusivelypresumed to be legitimate, even if the wife is shown to have been, at thesame time, guilty of infidelity. The fact that woman is living in adulterywould not by itself be sufficient to repel the conclusive presumption infavour of the legitimacy of child. Therefore, shreds of evidence to theeffect that the husband did not have intercourse with the wife at theperiod of conception, can only point to the illegitimacy of child born inwedlock, but it would not uproot the presumption of legitimacy underSection 112.8.5. The presumption under Section 112 can be drawn only if thechild is born during the continuance of valid marriage and not otherwise.“Access” or “non-access” must be in the context of sexual intercoursethat is, in the sexual sense and therefore, in that narrow sense. Accessmay for instance, be impossible not only when the husband is awayduring the period when the child could have been begotten or owing to

Aimpotency or incompetency due to various reasons or the passage oftime since the death of the husband. Thus, even though the husbandmay be cohabiting, there may be non-access between the husband andthe wife. One of the instances of non-access despite co-habitation is theimpotency of the husband. If the husband has had access, adultery onthe wife’s part will not justify finding of illegitimacy.B

8.6. Thus, “non-access” has to be proved as fact in issue andthe same could be established by direct and circumstantial evidence ofan unambiguous character. Thus, there could be “non-access” betweenthe husband and wife despite co-habitation. Conversely, even in theabsence of actual co-habitation, there could be access.C

8.7. Section 112 was enacted at time when modern scientifictests such as DNA tests, as well as Ribonucleic acid tests (‘RNA’, forshort), were not in contemplation of the legislature. However, even theresult of genuine DNA test cannot escape from the conclusiveness ofthe presumption under Section 112 of the Evidence Act. If husbandDand wife were living together during the time of conception but the DNAtest reveals that the child was not born to the husband, the conclusivenessin law would remain irrebuttable. What would be proved, is adultery onthe part of the wife, however, the legitimacy of the child would still beconclusive in law. In other words, the conclusive presumption of paternityEof child born during the subsistence of valid marriage is that the childis that of the husband and it cannot be rebutted by mere DNA testreport. What is necessary to rebut is the proof of non-access at the timewhen the child could have been begotten, that is, at the time of itsconception vide Kamti Devi vs. Poshi Ram, (2001) 5 SCC 311.F9. The next aspect of the matter that requires to be considered iswhether an adverse presumption can be drawn in the nature of Illustration(h) to Section 114, as to the wife’s adulterous conduct when she refusesto comply with direction for the child to undergo DNA test.

9.1. Section 114 states that the Court may presume the existenceGof any fact that it thinks likely to have happened, having regard to thecommon course of natural events, human conduct and public and privatebusiness, in relation to the facts of particular case. Broadly speaking,there are two classes of presumptions, viz presumption of fact andpresumption of law. The latter is again categorised as “rebuttablepresumptions of law” and “irrebuttable or conclusive presumptions ofHlaw”.

The Court may presume that if man refuses to answer questionwhich he is not compelled to answer by law, the answer if given wouldbe unfavourable to him. The questions that one is not compelled to answerby law, are dealt with in Sections 121-129. Refusal to answer questionis generally legitimate ground for unfavourable inference against theperson who may not answer the question. If witness refuses to answerthe question, the Court has the power to draw an inference from suchrefusal vide Section 148(4) of the Evidence Act. Section 148(4) readsas under:-

“148.Court to decide when question shall be asked and—when witness compelled to answer.

If any such question relates to matter not relevant to the suit orproceeding, except in so far as it affects the credit of the witnessby injuring his character, the Court shall decide whether or not thewitness shall be compelled to answer it, and may, if it thinks fit,warn the witness that he is not obliged to answer it. In exercisingits discretion, the Court shall have regard to the followingconsiderations:—

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(4)The Court may, if it sees fit, draw, from the witness’s refusalto answer, the inference that the answer if given would beunfavourable.”

The use of the word expression “may” would imply that the Courthas the discretion to draw such an inference and it not bound to do so.The Court is to exercise such discretion having regard to the facts ofeach independent case.

9.2. For the purpose of reaching one conclusion, the Court canrely on factual presumption unless the presumption is disproved ordispelled or rebutted. However, Illustration (h) to Section 114 has givenenough discretionary power to the Court to draw certain inferences fromthe facts. The presumption under the section is discretionary and notmandatory. The use of the phrase “may presume” in the said provisionindicated that that the Courts of Justice are to use their own sense andexperience in judging the effect of particular facts, and in determiningwhether presumption is to be drawn therefrom.

A10. At this juncture, it may be useful to refer to the decision ofthis Court in Dipanwita Roy wherein the interplay between Sections112 and 114 of the Evidence Act has been discussed. The said casearose out of divorce proceedings initiated by the respondent-husband onthe ground of adultery and infidelity. The respondent’s case was that atthe time when the child, whose paternity was in question, was conceived,Bthe parties were not living in co-habitation and on no occasion shared abed. The respondent sought to establish by way of DNA test that theson conceived during the said period was born outside wedlock and as aresult of the appellant-wife’s adulterous relationship with another personand consequently demonstrated infidelity on the part of the appellant-Cwife. This Court took note of the plea of the respondent-husband as tonon-access at the relevant time, and accordingly opined that it would bea fit case for directing that DNA test be conducted. Further, in thefacts and circumstances of the said case, this Court accepted that aDNA test would be the only way in which the respondent-husband couldestablish his plea of infidelity on the part of the appellant-wife. WhileDupholding the direction of the High Court to conduct DNA test of theminor child, this Court cautioned that if the direction to hold such testcan be avoided, it should be so avoided, and legitimacy of the child shouldnot be put to peril. The relevant portions of the decision in the said casehave been usefully extracted hereinunder:E“10. It is borne from the decisions rendered by this Court inBhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik(supra), that depending on the facts and circumstances of thecase, it would be permissible for Court to direct the holding of aDNA examination, to determine the veracity of the allegation(s),Fwhich constitute one of the grounds, on which the concerned partywould either succeed or lose. There can be no dispute, that if thedirection to hold such test can be avoided, it should be so avoided.The reason, as already recorded in various judgments by this Court,is that the legitimacy of child should not be put to peril.G11. The question that has to be answered in this case, is in respectof the alleged infidelity of the Appellant-wife. The Respondent-husband has made clear and categorical assertions in the petitionfiled by him Under Section 13 of the Hindu Marriage Act, alleginginfidelity. He has gone to the extent of naming the person, whowas the father of the male child born to the Appellant-wife. It is inHthe process of substantiating his allegation of infidelity, that the

Respondent-husband had made an application before the FamilyCourt for conducting DNA test, which would establish whetheror not, he had fathered the male child born to the Appellant-wife.The Respondent feels that it is only possible for him to substantiatethe allegations levelled by him (of the Appellant-wife’s infidelity)through DNA test. We agree with him. In our view, but for theDNA test, it would be impossible for the Respondent-husband toestablish and confirm the assertions made in the pleadings. Weare therefore satisfied, that the direction issued by the High Court,as has been extracted hereinabove, was fully justified. DNA testingis the most legitimate and scientifically perfect means, which thehusband could use, to establish his assertion of infidelity. This shouldsimultaneously be taken as the most authentic, rightful and correctmeans also with the wife, for her to rebut the assertions made bythe Respondent-husband, and to establish that she had not beenunfaithful, adulterous or disloyal. If the Appellant-wife is right,she shall be proved to be so.

12. We would, however, while upholding the order passed by theHigh Court, consider it just and appropriate to record caveat,giving the Appellant-wife liberty to comply with or disregard theorder passed by the High Court, requiring the holding of the DNAtest. In case, she accepts the direction issued by the High Court,the DNA test will determine conclusively the veracity ofaccusation levelled by the Respondent-husband, against her. Incase, she declines to comply with the direction issued by the HighCourt, the allegation would be determined by the concerned Court,by drawing presumption of the nature contemplated in Section114 of the Indian Evidence Act, especially, in terms of illustration(h) thereof. Section 114 as also illustration (h), referred to above,are being extracted hereunder:

“114. Court may presume existence of certain facts - The Courtmay presume the existence of any fact which it thinks likely tohave happened, regard being had to the common course ofnatural events, human conduct and public and private business,in their relation to the facts of the particular case.

Illustration (h) - That if man refuses to answer questionwhich he is not compelled to answer by law, the answer, ifgiven, would be unfavourable to him.”

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710SUPREME COURT REPORTS

AThis course has been adopted to preserve the right of individualprivacy to the extent possible. of course, without sacrificing thecause of justice. By adopting the above course, the issue ofinfidelity alone would be determined, without expressly disturbingthe presumption contemplated Under Section 112 of the IndianEvidence Act. Even though, as already stated above, undoubtedlyBthe issue of legitimacy would also be incidentally involved.”10.1. However, it is necessary to distinguish the facts of the presentcase with the facts in Dipanwita Roy. In the said case, the respondent-husband had made specific plea of non-access in order to rebut thepresumption under Section 112. He made clear and categorical assertionsCin the petition filed by him alleging infidelity. He even named the personwho was the father of the male child born to the appellant-wife, andasserted that at the relevant time, he and his wife did not share bed onany occasion. In that backdrop, this Court specifically recorded findingthat in the facts and circumstances of the said case, it would have beenDimpossible to prove the allegations of adultery/infidelity in the absenceof DNA test. However, in the present case, no plea has been raised bythe respondent-husband as to non-access in order to dislodge thepresumption under Section 112 of the Evidence Act. Further, therespondent has specifically claimed that he is in possession of callrecordings/transcripts, and the daily diary of the appellant, which wouldEpoint to the infidelity of the appellant. Therefore, this is not case wherea DNA test would be the only possible way to ascertain the truth regardingthe appellant’s adultery. Hence, in the present case, there is insufficientmaterial to dislodge the presumption under Section 112 of the EvidenceAct and permit DNA test of Master “X”.FFurther, having regard to the compelling need for DNA test inthe said case, in order to establish the truth, this Court directed that if theappellant-wife therein refused to comply with the direction of the Courtregarding DNA test, the allegations of adultery as against her would bedetermined by drawing an adverse inference as contemplated under

Illustration (h) of Section 114 of the Evidence Act. However, such anGobservation made in the said case cannot be regarded as precedentwhich can be applied to all cases in strait jacket manner wherein thewife refuses to comply with the direction of the Court regarding DNAtest.

It is highlighted at this juncture that presumptions are establishedHon the basis of facts, and the Court enjoys the discretionary power, either

to presume fact or not. As observed hereinabove, the facts inDipanwita Roy were so compelling, so as to justify direction to conducta DNA test. In the said case, the husband had taken specific plea ofnon-access. Further, the Court accepted that DNA test would be theonly manner in which the case of adultery could be proved. However,facts of the present case neither warrant direction to conduct DNAtest of Master “X”, nor do they justify drawing an adverse inference asagainst the appellant-wife, under Section 114 of the Evidence Act, onher refusal to subject her son to DNA test.

As per Black’s Law Dictionary, 9th Edition, ‘Inference’ means“a conclusion reached by considering other facts and deducing alogical consequence from them.”

‘Adverse Inference’ is explained as follows:

“A detrimental conclusion drawn by the fact-finder from aparty’s failure to produce evidence that is within the party’scontrol. Some courts allow the inference only if the party’sfailure is attributable to bad faith.”

The aforesaid meaning would also suggest that inferences, whetheradverse or otherwise, are to be drawn by the Court, on consideration offacts and circumstances of each individual cases. Hence, the judgmentof this Court in Dipanwita Roy is to be read in the aforesaid context.

In the instant case, there is no dispute about the paternity of Master“X” as even during the course of arguments, Learned Senior CounselShri Kapil Sibal admitted that Master “X” was born during the continuouscohabitation of the parties and thus during the subsistence of validmarriage. The thrust of the submissions of Learned Senior Counsel ShriKapil Sibal was that if the appellant herein does not agree to subjectMaster “X” to DNA test, then, an adverse inference could be raisedagainst her regarding her adulterous life. What is the nature of the adverseinference that could be raised against the appellant herein? The adverseinference is not with regard to Master “X” being child born outsidewedlock and therefore an illegitimate child. What was contended wasthat an adverse inference regarding adultery on the part of the appellantherein could be raised. We cannot accede to such an approach in thematter. The issue of paternity of Master “X” is alien to the issue ofadultery on the part of the appellant herein. Master “X “being legitimatechild of the parties herein has nothing to do with the alleged adultery on

Athe part of the appellant herein. Hence, the judgment of this Court inDipanwita Roy is of no assistance to the respondent herein. The aforesaidcase, turns on its own facts and cannot be relied upon as precedenthaving regard to the facts of this case.

Use of DNA profiling technology as means to prove adultery:

11. With the advancement of science, DNA profiling technologywhich is tool of forensic science can, in case of disputed paternity of achild by mere comparison of DNA obtained from the body fluid or bodytissues of the child with his parents, offer infallible evidence of biologicalparentage. But, it is not always necessary to conduct DNA test toCascertain whether particular child was born to 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 hiswife which is negative plea by positive proof in accordance with Section112 of the Evidence Act.D11.1. Family Court, no doubt, has the power to direct personto undergo medical tests, including DNA test and such an order wouldnot be in violation of the right to personal liberty under Article 21 of theConstitution, vide Sharda. However, the Court should exercise suchpower only when it is expedient in the interest of justice to do so, andwhen the fact situation in given case warrants such an exercise. Thus,Ean order directing that minor child be subjected to DNA test should notbe passed mechanically in each and every case.

11.2. This Court has, while considering questions connected withSection 112 of the Evidence Act, consistently expressed the stand againstDNA tests being ordered on mere asking. Further, the law does notFcontemplate use of DNA tests as exploratory or investigatory experimentsfor determining paternity. The following decisions of this Court are highlyinstructive in determining the circumstances under which DNA testmay be ordered by Court in matters involving disputed questions ofpaternity:Gi.In Goutam Kundu, this Court was required to considerwhether blood test of minor child could be ordered to beconducted as means to determine disputed questions ofpaternity in what was essentially matrimonial disputeconcerning maintenance. In the said case, the appellant-husband therein disputed the paternity of the child and prayed

for blood group test of the child to prove that he was notthe father of the child. According to him, if that could beestablished, he would not be liable to pay maintenance. Inthat context, this Court held that due deference must beaccorded to the presumption of legitimacy of child bornduring the subsistence of marriage, as expressed underSection 112 of the Evidence Act. The consequence of thesaid presumption on the power of the Courts to direct bloodtest as means to determine paternity in matrimonial disputeswas discussed by this Court, and the following principleswere culled out so as to guide the Courts in issuing suchdirections:

“26. From the above discussion it emerges:

(1)that courts in India cannot order blood test as matterof course;

(2)wherever applications are made for such prayers inorder to have roving inquiry, the prayer for blood testcannot be entertained.

(3)there must be strong prima facie case in that thehusband must establish non-access in order to dispelthe presumption arising under Section 112 of theEvidence Act.

(4)the court must carefully examine as to what wouldbe the consequence of ordering the blood test;whether it will have the effect of branding child asa bastard and the mother as an unchaste woman.

(5)no one can be compelled to give sample of blood foranalysis.”

ii.In Bhabani Prasad Jena, this Court emphasised that adirection to use DNA profiling technology to determine thepaternity of child, is an extremely delicate and sensitiveaspect. Therefore, such tests must be directed to beconducted only when the same are eminently needed. ThatDNA profiling in matter relating to paternity of childshould not be directed by the court as matter of course orin routine manner, whenever such request is made. The

court has to consider diverse aspects including presumptionunder Section 112 of the Evidence Act; pros and cons ofsuch order and the test of ‘eminent need’ whether it is notpossible for the court to reach the truth without use of suchtest. It was further declared that Court may direct that aDNA test be conducted, to conclusively determine paternity,only when there is strong prima-facie case in favour ofthe person seeking such direction.

iii.In Inayath Ali vs. State of Telangana, MANU/SC/1538/2022, the question before this Court was whether DNAtest of two minor children could be ordered by Court,with view to facilitate proof of allegations under Sections498A, 323, 354, 506 and 509 of Indian Penal Code, 1860.This Court speaking through Aniruddha Bose, J. at the outsettook note of the fact that the dispute was essentially onerelating to dowry related offences, and that paternity of thechildren of the complainant was not directly related to theallegations. The complainant therein sought for directionto conduct DNA test of her two minor children, in order toestablish that they were born as result of her forcedrelationship with her brother-in-law. Rejecting thecomplainant’s plea, this Court held as under as to the powerof Courts to subject children to DNA testing, in proceedingsin which their status is not required to be examined:

“In the present proceeding, we are taking two factorsinto account which have been ignored by the Trial Courtas also the Revisional Court. The Trial Court allowedthe application of the respondent no.2 mechanically, onthe premise that the DNA fingerprint test is permissibleunder the law. High Court has also proceeded on thatbasis, referring to different authorities including the caseof Dipanwita Roy v. Ronobroto Roy [2015 (1) SCC365]. The ratio of this case was also examined by theCoordinate Bench in the decision of Ashok Kumar(supra).

7. The first factor, which, in our opinion, is ofsignificance, is that in the judgment under appeal,blood sampling of the children was directed, who

were not parties to the proceeding nor were theirstatus required to be examined in the complaint ofthe respondent no.2. This raised doubt on theirlegitimacy of being borne to legally wedded parentsand such directions, if carried out, have thepotential of exposing them to inheritance relatedcomplication. Section 112 of the Evidence Act, alsogives protective cover from allegations of thisnature. The said provision stipulates:-

“Birth during marriage, conclusive proof oflegitimacy.—The fact that any person was bornduring the continuance of valid marriagebetween his mother and any man, or within twohundred and eighty days after its dissolution, themother remaining unmarried, shall be conclusiveproof that he is the legitimate son of that man,unless it can be shown that the parties to themarriage had no access to each other at any timewhen he could have been begotten.”

8. In our opinion, the Trial Court as also theRevisional Court had completely ignored the saidfactor and proceeded as if the children werematerial objects who could be sent for forensicanalysis. The other factor, in our opinion, which wasignored by the said two Courts is that the paternity ofthe children was not in question in the subject-proceeding.

9. The substance of the complaint was not related topaternity of the children of the respondent no.2 but thequestion was whether the offences under the aforesaidprovisions of the 1860 Code was committed against heror not. The paternity of the two daughters of therespondent no.2 is collateral factor to theallegations on which the criminal case is otherwisefounded. On the basis of the available materials, in ouropinion, the case out of which this proceeding arisescould be decided without considering the DNA testreport. This was the reasoning which was considered

Aby the Coordinate Bench in the case of Ashok Kumar(supra), though that was civil suit. Merely becausesomething is permissible under the law cannot bedirected as matter of course to be performedparticularly when direction to that effect wouldbe invasive to the physical autonomy of person.BThe consequence thereof would not be confined to thequestion as to whether such an order would result intestimonial compulsion, but encompasses right to privacyas well. Such direction would violate the privacyright of the persons subjected to such tests andCcould be prejudicial to the future of the two childrenwho were also sought to be brought within the ambitof the Trial Court’s direction.”

(Emphasis by us)

12. Having regard to the aforesaid discussion, the followingDprinciples could be culled out as to the circumstances under which aDNA test of minor child may be directed to be conducted:

i.That DNA test of minor child is not to be orderedroutinely, in matrimonial disputes. Proof by way of DNAprofiling is to be directed in matrimonial disputes involvingEallegations of infidelity, only in matters where there is noother mode of proving such assertions.

ii.DNA tests of children born during the subsistence of validmarriage may be directed, only when there is sufficientprima-facie material to dislodge the presumption underFSection 112 of the Evidence Act. Further, if no plea hasbeen raised as to non-access, in order to rebut thepresumption under Section 112 of the Evidence Act, DNAtest may not be directed.

iii.A Court would not be justified in mechanically directing aGDNA test of child, in case where the paternity of childis not directly in issue, but is merely collateral to theproceeding.

iv.Merely because either of the parties have disputed factumof paternity, it does not mean that the Court should directHDNA test or such other test to resolve the controversy.

The parties should be directed to lead evidence to prove ordisprove the factum of paternity and only if the Court findsit impossible to draw an inference based on such evidence,or the controversy in issue cannot be resolved without DNAtest, it may direct DNA test and not otherwise. In otherwords, only in exceptional and deserving cases, where sucha test becomes indispensable to resolve the controversythe Court can direct such test.

v.While directing DNA tests as means to prove adultery,the Court is to be mindful of the consequences thereof onthe children born out of adultery, including inheritance-related consequences, social stigma, etc.

13. Further, in Nandlal Wasudeo Badwaik, the facts of the casewere that due to non-opposition of the counsel for the wife, this Courtdirected that the serological test be conducted. The report was broughton record, which stated that the appellant-husband was not the biologicalfather of the minor child. At the request of the respondent-wife, re-test was ordered, which also revealed the same result. The plea withregard to the applicability of section 112 of the Evidence Act was takenonly after the DNA test was conducted on the direction of this Courtand the report was brought on record. This Court held that when areport of DNA test conducted on the direction of Court, was availableon record and was in conflict with the presumption of conclusive proofof the legitimacy of the child, the DNA test report cannot be ignored.Hence, this Court relied on the DNA test report and held that theappellant-husband would not be liable to pay maintenance. The said casewould be of no assistance to the case of the respondent herein. This isbecause, in the said case, this Court was confronted with situation inwhich DNA test report, in fact, was available and was in conflict withthe presumption of conclusive proof of legitimacy of the child, underSection 112 of the Evidence Act. However, in the present case, no DNAtest is available till date, which was conducted on the direction of acompetent Court. Therefore, the respondent-husband would first needto dislodge the presumption under Section 112 of the Evidence Act andthereafter seek direction to conduct DNA test of Master ‘X”.

14. The evidentiary value of blood tests for determining paternity,has been discussed in Rayden and Jackson on Divorce and FamilyMatters, (1983) Vol. I, at Pg. 1054, in the following words:

A“…depending on the type of litigation, samples of blood, whensubjected to skilled scientific examination, can sometimes supplyhelpful evidence on various issues, to exclude parentage set upin the said case. But the consideration remains that the partyasserting the claim to have child and the rival set up parents putto blood test must establish his right to do so. The courts exerciseBprotective jurisdiction on behalf of an infant. In myconsidered opinion, it would be unjust and not fair either todirect test for collateral reason to assist litigant in hisor her claim. The child cannot be allowed to suffer becauseof his incapacity; the aim is to ensure that he gets his rights.CIf in case the court has reason to believe that theapplication for the blood test is of fishing nature ordesigned for some ulterior motive, it would be justified innot according to such prayer.”

(Emphasis by us)

15. It is trite that the burden is on litigating party to prove hiscase by adducing evidence in support of his plea. The Court is not tocompel one party to the dispute to assist the other contesting party, videAshok Kumar. Therefore, DNA tests are not to be directed on routinebasis, merely to enable party to prove his case of adultery.

EThe right of children not to have their legitimacy questionedfrivolously in Courts of Law:

16. The default position in India is that for many reasons, parentsare presumed to be the decision makers for their children, in so far ashealthcare, consent for genetic testing etc. are concerned. JustificationsFfor this position include that parents are free within very broad limits todecide how to bring up their children, parents are thought to be mostlikely to act in their child’s best interests, children generally lack thecapacity to make fully competent decisions so someone else must, andstate intervention is rarely appropriate. Genetic information is broadlyGunderstood as shedding light on person’s essence, as going to the veryheart of who he/she is. That kind of intimate, personal information, whichis so highly valued in our society, is precisely what the law protects in theright of privacy, which extends even to children.

17. Further, children have the right not to have their legitimacyquestioned frivolously before Court of Law. This is an essential attributeH

of the right to privacy. Courts are therefore required to acknowledgethat children are not to be regarded like material objects, and be subjectedto forensic/DNA testing, particularly when they are not parties to thedivorce proceeding. It is imperative that children do not become thefocal point of the battle between spouses.

The Rights to Privacy, Autonomy and Identity of Childrenunder The Convention on Rights of Child:

18. In 1989, the United Nations Organisation drew up theConvention on Rights of Child with view to provide special protectionto children, proclaiming that “childhood is entitled to special careand assistance.” The Declaration, inter-alia, recognises that child,for full and harmonious development of his or her personality, shouldgrow up in family environment, in an atmosphere of happiness, loveand understanding. The Declaration further emphasises the importanceof family, as the “fundamental group of society and the naturalenvironment for the growth and well-being of all its members andparticularly children.”

19. Article 19 of the Convention protects children against all formsof violence, neglect, and abuse; Article 24(3) protects children againsttraditional practices that are prejudicial to child’s health; and Article 37protects children against torture and cruel, inhuman, and degradingtreatment. Complementing these provisions is child’s right to privacy,which extends to the physical and psychological integrity of achild.Importantly, violations of child’s bodily integrity that reach thethreshold of torture or cruel inhuman degrading treatment will never bejustifiable, given the absolute prohibition on such treatment. Thus, aviolation of this prohibition will always constitute violation of child’sright to privacy. However, the right to privacy has residual applicationin those cases where there is an interference with child’s physical and/or psychological integrity that does not reach the threshold for torture orcruel, inhuman, and degrading treatment.In such circumstances thequestion becomes whether the interference with child’s integrity islawful and non-arbitrary.

20. The Convention accommodates and protects parental rightswith respect to the upbringing of their Children, vide Article 5. However,this deference to parental wishes is subject to the strict caveat that suchrights are exercised for the purpose of providing guidance and assistanceto child. Thus, unless parent can demonstrate on the basis of objective

Aevidence that an interference with child’s bodily integrity is intended tobenefit the health and development of child, the interference will notbe justified. If any interference with the right to privacy or bodily integrityof child is to be justified, it must be established that there is objectiveevidence that establishes nexus between the measure and aim; thatthere is no reasonably available alternative which would have minimizedBthe interference with the child’s right. Applying the said principlesenumerated in the Convention, to the facts of the present case, we areunable to accept that conducting DNA test of child, as means toprove adultery on the part of the appellant-wife, is with view to provideguidance and assistance to child, as required under the Convention.CFurther, interference with the bodily integrity of child in such case,would not be justified, as there is no nexus between the Respondent’srequest for the DNA test and the best interests of the child.

21. The concept of privacy for child may not be equivalent tothat of an adult. However, the evolving capacity of children has beenDrecognised and the Convention acknowledges the control that individuals,including children, have over their own personal boundaries and the meansby which they define who they are in relation to other people. Childrenare not to be deprived of this entitlement to influence and understandtheir sense of self simply by virtue of being children. Further, Article 8 ofthe Convention provides children with an express right to preserve theirEidentity. Details of parentage are an attribute of child’s identity.Therefore, long-accepted notions about child’s parentage must not befrivolously challenged before Courts of Law.

Best interests of child:

F22. The phrase “mankind owes to the child the best it has togive” clearly underlines our duties towards children, and it entitles themto the best that mankind can give. This implies that the interest of thechild should be given primary consideration in actions involving children.

This idea has been effectively expressed in Article 3 of theGConvention on the Rights of Child which reads as under:

“In all actions concerning children, whether undertaken by publicor private social welfare institutions, courts of law,administrative authorities or legislative bodies, the best interestsof the child shall be primary consideration”.

22.1 In two English decisions reported in Re L., (1968) 1 All ER20 and B. (B.R.) vs. B.(J.), (1968) 2 All ER 1023, blood test of thechild was permitted for determining paternity. However, the decisionin Re L. was passed based on the reasoning that blood test can bedirected if it serves the best interest of the child. Lord Denning, MR,was however of the view that blood tests could be ordered even incases involving paternity issues or in proceedings where it is in the bestinterest of the child to have its paternity settled one way or the other.However, in the same decision, Wilmer, LJ and Davoes, LJ, expressedtheir reservations against the opinion of Lord Denning, MR, regardingblood tests in proceedings other than in custodial jurisdiction.

However, in the latter decision of B. (B.R.), it was held that ajudge of the High Court can order blood test on paternity issue orindeed on any other issue, when doing so would be in the best interest ofthe child to do so.

22.2 This Court has consistently invoked the principle of bestinterest of child, particularly, in disputes concerning custody of children.

22.3. It is undeniable that finding as to illegitimacy, if revealed ina DNA test, would, at the very least adversely affect the childpsychologically. It can cause not only confusion in the mind of the childbut quest to find out who the real father is and mixed feeling towardsa person who may have nurtured the child but is not the biological father.Not knowing who one’s father is creates mental trauma in child.One can imagine, if, after coming to know the identity of the biologicalfather what greater trauma and stress would impact on young mind.Proceedings which are in rem have real impact on not only the childbut also on the relationship between the mother and the child itself whichis otherwise sublime. It has been said that parents of child may havean illegitimate relationship but child born out of such relationshipcannot carry the stamp of illegitimacy on its forehead, as, such childhas no role to play in its birth. An innocent child cannot be traumatisedand subjected to extreme stress and tension in order to discover itspaternity. That is why Section 112 of the Evidence Act speaks about aconclusive presumption regarding the paternity of child, subject to arebuttal, as provided in the second part of the Section.

In today’s world, there can even be race to claim paternity of achild so as to invade upon its rights, particularly, if such child is endowed

Awith property and wealth. There could also be exclusions in testamentdoubting the paternity of child or an evasion in performance of parentalobligations such as payment of maintenance or living and educationalexpenses by simply doubting the paternity of child.

In many cases, this would cast doubt on the chastity of theBmother of child when no such doubt could arise. As result, thereputation and dignity of mother of child would be jeopardised insociety. What is of utmost importance for lady who is the mother of achild is to protect her chastity as well as her dignity and reputation, inthat, she would also preserve the dignity of her child.

CNo woman, particularly, who is married can be exposed to anenquiry on the paternity of child she has given birth to in the face ofSection 112 of the Evidence Act subject to the presumption being rebuttedby strong and cogent evidence. Section 112 particularly speaks aboutbirth of child during marriage and raises conclusive presumptionabout legitimacy. Section 112 has recognised the institution of marriageDi.e., valid marriage for the purpose of conferring legitimacy on childrenborn during the subsistence of such marriage.

As to children born outside valid marriage, the personal law ofrespective parties would apply. But in the cases of children born from arelationship in the nature of marriage and when the parents are in aEdomestic relationship or those born as result of sexual assault or tothose who are in casual relationship or to those forced or subjected torender sexual favours and beget children, the problem of their legitimacygets complex and is serious.

child should not be lost in its search for paternity. PreciousFchildhood and youth cannot be lost in quest to know about one’s paternity.Therefore, the wholesome object of Section 112 of the Evidence Actwhich confers legitimacy on children born during the subsistence of avalid marriage, subject to the same being rebutted by cogent and strongevidence, is to be preserved.GChildren of today are citizens and the future of nation. Theconfidence and happiness of child who is showered with love andaffection by both parents is totally distinct from that of child who hasno parents or has lost parent and still worse, is that of child whosepaternity is in question without there being any cogent reason for thesame. The plight of child whose paternity and thus his legitimacy, isH

questioned would sink into vortex of confusion which can be confoundedif Courts are not cautious and responsible enough to exercise discretionin most judicious and cautious manner.

Further, questions surrounding paternity have significant impacton the identity of child. Routinely ordering DNA tests, particularly incases where the issue of paternity is merely incidental to the controversyat hand, could, in some cases even contribute to child suffering anidentity crisis. It is also necessary to take into account that some children,although born during the subsistence of marriage and on the desire andconsent of the married couple to beget child, may have been conceivedthrough processes involving sperm donation, such as intrauterineinsemination (IUI), in-vitro fertilisation (IVF). In such cases, DNAtest of the child, could lead to misleading results. The results may alsocause child to develop sense of mistrust towards the parents, andfrustration owing to the inability to search for their biological fathers.Further, child’s quest to locate its biological father may compete withthe right to anonymity of the sperm donor. Having regard to such factors,a parent may, in the best interests of the child, choose not to subject achild to DNA test. It is also, antithetical to the fundamentals of theright to privacy to require person to disclose, in the course of proceedingsin rem, the medical procedures resorted to in order to conceive.

The reasons for the parent’s refusal may be several, and hence, itis not prudent to draw an adverse inference under Section 114 of theEvidence Act, in every case where parent refuses to subject the childto DNA test.

Therefore, it is necessary that only in exceptional and deservingcases, where such test becomes indispensable to resolve thecontroversy, the Court can direct such test. Further, direction to conductDNA test of child, is to be ordered even rarely, in cases where thepaternity of child is not directly in issue but is merely collateral to theproceeding, such as in the instant case.

Conclusions:

23. ‘Illegitimate’- term that brands an individual with the shameof being born outside wedlock, casts shadow on one’s identity. Timeschange and attitudes may change, but the impact of growing up with thesocial stigma of being illegitimate, does not. The Courts must hence beinclined towards upholding the legitimacy of the child unless the facts

Aare so compulsive and clinching as to necessarily warrant finding thatthe child could not at all have been begotten to the father and as such alegitimisation of the child would result in rank injustice to the father, videDukhtar Jahan vs. Mohammed Farooq,(1987) 1 SCC 624.

24. Questions as to illegitimacy of child, are only incidental toBthe claim of dissolution of marriage on the ground of adultery or infidelity.Allowing DNA tests to be conducted on routine basis, in order toprove adultery, would amount to redefinition of the maxim, “Pater estquem nuptiae demonstrant” which means, the father is he whom thenuptials point out. While dealing with allegations of adultery and infidelity,a request for DNA test of the child, not only competes with theCpresumption under Section 112, but also jostles with the imperative ofbodily autonomy.

25. Another aspect that needs to be considered in the instant caseis whether, for just decision in the divorce proceedings, DNA test iseminently necessary. This is not case where DNA test is the onlyDroute to the truth regarding the adultery of the mother. If the paternity ofthe children is the issue in proceeding, DNA test may be the only routeto establish the truth. However, in our view, it is not so in the presentcase. The evidence of DNA test to rebut the conclusive presumptionavailable under Section 112 of the Evidence Act, can be allowed onlyEwhen there is compelling circumstances linked with ‘access’, whichcannot be liberally used as cautioned by this Court in Dipanwita Roy.

26. The case of the Respondent-husband is that if DNA test isallowed and the same reveals that he is not the biological father of “X”,as corollary, it would be proved that the Appellant-wife committedFadultery. We do not find favour with the approach suggested by theRespondent-husband to prove adultery, for the following reasons:

i.It is not in dispute that Master “X”, the son stated to beborn to the Appellant-wife from the wedlock, was born inthe year 2013. DNA testing, cannot be used as short cutGto establish infidelity that might have occurred over decadeago or subsequently after the birth of Master “X”.

ii.In the circumstances of the present case, we are unable toaccept that DNA test would be the only way in which thetruth of the matter can be established. The respondent-husband has categorically claimed that he is in possessionH

of call recordings/transcripts and the daily diary of theappellant, which may be summoned in accordance with lawto prove the infidelity of the appellant. Therefore, it seemsto us that the respondent is in position to attempt to makeout case based on such evidence, as to adultery/infidelityon the part of the appellant.

iii.No plea has been raised by the respondent-husband hereinas to non-access in order to dislodge the presumption underSection 112 of the Evidence Act. Therefore, no prima-faciecase has been made out by the respondent which wouldjustify direction to conduct DNA test of Master “X”.

iv.No adverse inference can be raised in the instant caseregarding the legitimacy or paternity of Master “X” vis-à-vis the appellant herein, on her declining to subject Master“X” to paternity test. Further, on the appellant decliningto subject Master “X” to paternity test, no adverseinference can be drawn as regards the alleged adultery onthe part of the appellant herein can be raised. In our view,the allegation of adultery has to be proved by the respondentherein de hors the issue of paternity of Master “X”.

27. In the result, the present appeal is allowed. Consequently, theimpugned judgment of the High Court of Judicature at Bombay dated22[nd] November, 2021 and the order of the Family Court, Pune dated 12[th]August, 2021, are set aside.

Bearing in mind the facts of the present case, the appeal is allowedwith cost of Rs.1 Lakh payable by the respondent to the appellant. Thesame shall be paid before the Family Court within period of one monthfrom today.

V. RAMASUBRAMANIAN, J.

1. While I am entirely in agreement with the opinion well-craftedby my learned sister Hon’ble Mrs. Justice B.V. Nagarathna, I thoughtthat two aspects of the matter require little more emphasis. Hence aseparate but concurring opinion.

2. As we have seen from the narration of facts given by my learnedsister Hon’ble Mrs. Justice B.V. Nagarathna –

A•The marriage of the appellant with the respondent took placeon 23.11.2005.

•The first child was born on 21.12.2009.

•The second child was born on 17.7.2013.

B•The respondent-husband claims to have found out thealleged adulterous conduct of the appellant, on 14.9.2016,(3 years after the birth of the second child) when heaccidentally stumbled upon the Whatsapp messages in themobile phone of the appellant.

C•Then the respondent privately had DNA test conductedon the second child, in November 2016, from DNA LabsIndia, which is said to be an ISO 17025 certified, A2LAand NATA accredited agency.

•The respondent then filed petition for divorce on the groundDof adultery, in June 2017.

•During the pendency of the proceedings for divorce, therespondent moved an application in November 2020 seekinga direction to subject the second son to DNA testing at theGovernment Central Forensic Laboratory.

E3. The Family Court allowed the application filed by the respondent-husband and the High Court also affirmed the same, forcing the wife tocome up with the above appeal, contending that under Section 112 of theIndian Evidence Act, 1872[1], birth during marriage is conclusive proof oflegitimacy and that no evidence to disprove the same can be allowed bythe Court. This is especially so when the parties to the marriage admittedlyFhad access to each other during the time when the child could have beenbegotten.

4. The main contention of Shri Kapil Sibal, learned senior counselfor the respondent-husband is that the respondent is not even questioningthe legitimacy of the child, but alleging adultery against the appellant-Gwife and that therefore, on the refusal of the wife to subject the child toDNA test, presumption under Section 114(h) of the Evidence Act canbe drawn against the appellant-wife. In other words, his contention isthat what is applicable in the case on hand, is not Section 112 but Section

H1 For short, “Evidence Act” or the “Act”, as the case may be

114(h) and that the Court need not subject the child to DNA test, if theappellant is not willing.

5. In the light of the aforesaid contention, two aspects, in myopinion, require deeper analysis. They are (i) the interplay betweenSections 112 and 114(h) of the Evidence Act; and (ii) whose rights, areto tilt the balance in the scales of justice?

Interplay between Sections 112 and 114(h) of the EvidenceAct

6. Section 4 of the Evidence Act defines the expressions “maypresume”, “shall presume” and “conclusive proof”. Section 4 indicatesthe course of action to be followed by Court, wherever the Act makesit (i) optional to presume fact; (ii) mandatory to presume fact; and(iii) obligatory for the Court to take one fact to be conclusive proof ofanother. To put it in simple terms, wherever the Act uses the expression“may presume”, it is optional for the Court either to presume or not topresume. If Court refuses to presume the fact in question as proved,that is the end of the matter. But when the Court agrees to presumesuch fact, it is up to the other party to lead evidence to rebut thepresumption. Wherever the Act uses the expression “shall presume”,the Court has no option but to presume the fact, till such time it is rebutted.But wherever the Act uses the expression “conclusive proof”, the Courtcannot even allow evidence to be given for the purpose of disproving it.

7. The expression “shall presume” is used in the Evidence Act-

•In Section 79 in relation to genuineness of certified copiesof documents.

•In Section 80 in relation to documents produced as recordFof evidence.

•In Section 81 in relation to genuineness of Gazettes,newspapers, Acts of Parliament, etc.

•In Section 81A in relation to genuineness of every electronicGrecord purporting to be the Official Gazette.

•In Section 82 in relation to documents admissible in Englandwithout proof of seal or signature.

•In Section 83 in relation to accuracy of maps or plans madeby the authority of the Government.

728SUPREME COURT REPORTS

A•In Section 84 in relation to genuineness of every bookpurporting to be printed or published under the authority ofthe Government, containing collection of the laws of thecountry and reports of the decisions of the Courts.

•In Section 85 in relation to certain powers-of-attorney.

•In Sections 85A, 85B and 85C in relation to electronicagreements, electronic records and the electronic signaturecertificates.

•In Section 89 in relation to due execution of documentscalled for and not produced after notice to produce.C•In Section 111A in relation to certain offences.

•In Section 111A in relation to certain offences.

•In Section 113 in relation to cession of territory.

•In Section 113B in relation to dowry death.

•In Section 114A in relation to absence of consent in certainDprosecutions for rape.

8. The expression “may presume” is used in the Evidence Act-

•In Section 86 in relation to certified copies of judicial recordsof countries other than India.

•In Section 87 in relation to the author, publisher and theEplace and time of publication of books, maps and charts, towhich reference is made for information on matters ofpublic or general interest.

•In Section 88 in relation to telegraphic messages.

•In Section 88A in relation to electronic messages.

•In Section 90 in relation to documents which are thirty yearsold.

•In Section 90A in relation to electronic records which arefive years old.

•In Section 113A in relation to abetment of suicide by amarried woman.

•In Section 114 in relation to existence of certain facts.

9. It is interesting to note that the Evidence Act does not includelegitimacy of birth during marriage, either under the category of factHwhich “may be presumed” or under the category of fact which “shall

be presumed”. On the contrary, the Act places birth during marriage as“conclusive proof” of legitimacy. But Section 112 keeps window open,enabling party to the marriage who questions the legitimacy of thechild, to show that he/she had no access to the other, when the childcould have been begotten.

10. We have seen that under Section 4, when one fact is declaredby the Act to be conclusive proof, the Court shall, on proof of that onefact, regard the other as proved, and shall not allow evidence to be givenfor the purpose of disproving it. This is why Section 112 does not usethe word “proved” or “disproved”. Section 112 uses the words “unlessit can be shown”.

11. combined reading of Section 4 and Section 112 would showthat once the party questioning the legitimacy of the birth of childshows that the parties to the marriage had no access to each other, thenthe benefit of Section 112 is not available to the party invoking Section112. In other words, if party to marriage establishes that there wasno access to the other party to the marriage, then the shield of conclusiveproof becomes unavailable. If on the contrary, such party is not ableto prove that he had no access to the other party to the marriage, thenthe shield of Section 112 protects the other party to such an extent thatit cannot be pierced by any amount of evidence in view of the prohibitioncontained in Section 4.

12. In contrast, Section 114 on which heavy reliance is placed byShri Kapil Sibal, learned senior counsel for the respondent, deals onlywith facts which the Court “may presume”. The existence of any factwhich the Court may presume to have likely to have happened, turn onthree things, namely, (i) common course of natural events; (ii) commoncourse of human conduct; and (iii) common course of public and privatebusiness. Since natural events, human conduct, etc. are not alwaysconsistent, the presumption regarding the existence of any fact withregard to these things, are placed only under the category of facts which“may be presumed”.

13. As pointed out earlier, wherever the Act uses the expression“may presume”, it is only optional and not mandatory for the Court topresume the existence of such fact. That it is only optional standsreinforced by, (i) the Illustrations under Section 114; and (ii) the furtherexposition of those Illustrations. At this stage it may be useful to extract

(i) Section 114; (ii) the Illustrations under Section 114; and (iii) theexposition of those Illustrations, all of which read as follows:-

“114. Court may presume existence of certain facts.— TheCourt may presume the existence of any fact which it thinks likelyto have happened, regard being had to the common course ofnatural events, human conduct and public and private business, intheir relation to the facts of the particular case.

Illustrations

The Court may presume—

(a) That man who is in possession of stolen goods soon afterthe theft is either the thief or has received the goods knowingthem to be stolen, unless he can account for his possession;

(b) That an accomplice is unworthy of credit, unless he iscorroborated in material particulars;

(c) That bill of exchange, accepted or endorsed, was acceptedor endorsed for good consideration;

(d) That thing or state of things which has been shown to bein existence within period shorter than that within which suchthings or state of things usually cease to exist, is still in existence;

(e) That judicial and official acts have been regularly performed;

(f) That the common course of business has been followed inparticular cases;

(g) That evidence which could be and is not produced would,if produced, be unfavourable to the person who withholds it;

(h) That if man refuses to answer question which he is notcompelled to answer by law, the answer, if given, would beunfavourable to him;

(i) That when document creating an obligation is in the handsof the obligor, the obligation has been discharged.

But the Court shall also have regard to such facts as thefollowing, in considering whether such maxims do or do not applyto the particular case before it:—

As to illustration (a)—A shop-keeper has in his bill markedrupee soon after it was stolen, and cannot account for its possession

specifically, but is continually receiving rupees in the course of hisbusiness;

As to illustration (b)—A, person of the highest character,is tried for causing man’s death by an act of negligence inarranging certain machinery. B, person of equally good character,who also took part in the arrangement, describes precisely whatwas done, and admits and explains the common carelessness ofA and himself;

As to illustration (b)—A crime is committed by severalpersons. A, and C, three of the criminals, are captured on thespot and kept apart from each other. Each gives an account ofthe crime implicating D, and the accounts corroborate each otherin such manner as to render previous concert highly improbable;

As to illustration (c)—A, the drawer of bill of exchange,was man of business. B, the acceptor, was young and ignorantperson, completely under A’s influence;

As to illustration (d)—It is proved that river ran in certaincourse five years ago, but it is known that there have been floodssince that time which might change its course;

As to illustration (e)—A judicial act, the regularity of whichis in question, was performed under exceptional circumstances;

As to illustration (f)—The question is, whether letter wasreceived. It is shown to have been posted, but the usual course ofthe post was interrupted by disturbances;

As to illustration (g)—A man refuses to produce documentwhich would bear on contract of small importance on which heis sued, but which might also injure the feelings and reputation ofhis family;

As to illustration (h)—A man refuses to answer questionwhich he is not compelled by law to answer, but the answer to itmight cause loss to him in matters unconnected with the matter inrelation to which it is asked;

As to illustration (i)—A bond is in possession of the obligor,but the circumstances of the case are such that he may havestolen it.”

A14. As may be seen from the exposition to the Illustrations, theCourt, while taking decision to presume or not, the existence of anyfact, should have regard to some additional facts, in considering whethersuch maxims do or do not apply to the particular case.

15. It is relevant to note that there are nine Illustrations underBSection 114, from (a) to (i). Immediately after those Illustrations, theexposition of those Illustrations begins with the words: “But the Courtshall also have regard to such facts as the following, in consideringwhether such maxims do or do not apply to the particular casebefore it”.C16. Let us take for instance, Illustration (h) under Section 114. Itsays that if man refuses to answer question which he is not compelledto answer by law, the Court may presume that the answer, if given,would be unfavourable to him. But the exposition to Illustration (h) saysthat in considering the maxim under (h), the Court shall have due regardas to whether the refusal of the man to answer the question, is due to theDfact that the answer may cause loss to him in matters unconnected withthe matter in relation to which it is asked.

17. In other words, while dealing with situation where apresumption in terms of Illustration (h) under Section 114 is sought to beraised, the Court has to examine whether the refusal of the person toEanswer, is on account of the fear that the answer may produce anunfavourable result to him in relation to the matter in issue or due to thefear that such an answer might cause loss to him in matter unconnectedto it.

18. Keeping in mind the above scheme of Sections 4, 112 and 114,Flet us now test the main contention of Shri Kapil Sibal, learned seniorcounsel for the respondent-husband that the attempt of the respondent-husband is not so much to show that he did not father the second childbut is only to show that the appellant was living in adultery and that whatcomes into play in this case is only Section 114 and not Section 112. TheGlearned senior counsel submitted that the respondent-husband is evenprepared to accept the second child as his own, irrespective of theoutcome of the DNA test. According to the learned senior counsel forthe respondent, it is open to the appellant-wife not to subject the child toDNA test, even if the Court orders the same, but if the appellant choosesnot to subject the child to DNA test, the Court is obliged to draw anHadverse inference in terms of Section 114(h). According to the learned

senior counsel, such adverse inference need not be about the paternityof the child but shall be only about the adulterous conduct of the appellant-wife.

19. To drive home the point that such an adverse inference, notabout the paternity of the child, but about the adulterous conduct of thewife is permissible in law, learned senior counsel for the respondentplaced heavy reliance upon last two paragraphs of the decision inDipanwita Roy vs. Ronobroto Roy[2]. These paragraphs read as follows:

“17. The question that has to be answered in this case is in respectof the alleged infidelity of the appellant wife. The respondenthusband has made clear and categorical assertions in the petitionfiled by him under Section 13 of the Hindu Marriage Act, alleginginfidelity. He has gone to the extent of naming the person whowas the father of the male child born to the appellant wife. It is inthe process of substantiating his allegation of infidelity that therespondent husband had made an application before the FamilyCourt for conducting DNA test which would establish whetheror not he had fathered the male child born to the appellant wife.The respondent feels that it is only possible for him to substantiatethe allegations levelled by him (of the appellant wife’s infidelity)through DNA test. We agree with him. In our view, but for theDNA test, it would be impossible for the respondent husband toestablish and confirm the assertions made in the pleadings. Weare therefore satisfied that the direction issued by the High Court,as has been extracted hereinabove, was fully justified. DNA testingis the most legitimate and scientifically perfect means, which thehusband could use, to establish his assertion of infidelity. This shouldsimultaneously be taken as the most authentic, rightful and correctmeans also with the wife, for her to rebut the assertions made bythe respondent husband, and to establish that she had not beenunfaithful, adulterous or disloyal. If the appellant wife is right, sheshall be proved to be so.

18. We would, however, while upholding the order passed by theHigh Court, consider it just and appropriate to record caveat,giving the appellant wife liberty to comply with or disregard theorder passed by the High Court, requiring the holding of the DNAtest. In case, she accepts the direction issued by the High Court,

2 (2015) 1 SCC 365

DEF

Athe DNA test will determine conclusively the veracity ofaccusation levelled by the respondent husband against her. In case,she declines to comply with the direction issued by the High Court,the allegation would be determined by the court concerned bydrawing presumption of the nature contemplated in Section 114of the Evidence Act, especially, in terms of Illustration (h) thereof.BSection 114 as also Illustration (h), referred to above, are beingextracted hereunder:

“114.Court may presume existence of certainfacts.—The court may presume the existence of any fact whichit thinks likely to have happened, regard being had to theCcommon course of natural events, human conduct and publicand private business, in their relation to the facts of the particularcase.”

“Illustration (h)—that if man refuses to answer aquestion which he is not compelled to answer by law, theDanswer, if given, would be unfavourable to him;”

This course has been adopted to preserve the right of individualprivacy to the extent possible. Of course, without sacrificing thecause of justice. By adopting the above course, the issue ofinfidelity alone would be determined, without expressly disturbingEthe presumption contemplated under Section 112 of the EvidenceAct. Even though, as already stated above, undoubtedly the issueof legitimacy would also be incidentally involved.”

20. Heavy reliance is also placed by Shri Kapil Sibal, learnedsenior counsel for the respondent on paragraph 79 of the decision inFSharda vs. Dharmpal[3]. It reads as follows:

“79. If despite an order passed by the court, person refuses tosubmit himself to such medical examination, strong case fordrawing an adverse inference would be made out. Section 114 ofthe Indian Evidence Act also enables court to draw an adverseGinference if the party does not produce the relevant evidences inhis power and possession.”

21. But we do not know how mix up of Section 112 and Section114 is possible. Section 112 deals with something where the existence of

fact is taken to be conclusive proof, without any possibility for thedisputing party to lead evidence for disproving the same. The only escaperoute or emergency exit as we may call it, available for person todeprive another person of the benefit of Section 112, is to show that theparties to the marriage did not have access to each other at the timewhen the child could have been begotten. Section 114 has nothing to dowith, nor is in connection with conclusive proof of legitimacy dealt withby Section 112. Both Section 112 and Section 114 fall under differentcompartments. The word “presumption” itself is not used in Section112. The expression used in Section 112 is “conclusive proof”.Therefore, by virtue of Section 4, no evidence shall be allowed to begiven for the purpose of disproving it.

22. As we have indicated elsewhere, if one of the parties to themarriage shows that he had no access to the other at the time when thechild could have been begotten, then Section 112 itself does not getattracted. On the contrary, if the parties have had access to each otherat the relevant point of time, the fate of the question relating to legitimacyis sealed.

23. We are not suggesting for moment that Section 112 acts asa shield even for the alleged adulterous conduct on the part of the wife.All that we say is that anything that would destroy the legal effect ofSection 112 cannot be used by the respondent, on the ground that thesame is being done to achieve another result.

24. In the case on hand, the very pleading of the respondent in hispetition for divorce before the Family Court is that the second child-Master “X” was born on 17.7.2013 and that the respondent came toknow about the alleged adulterous behavior of the appellant herein, onlyon 14.9.2016. In paragraph 23 of his petition for divorce, the respondentpleaded as follows:

“23. The Petitioner states that he has not condoned the adulteryand the cruel behavior of Respondent No.1. The Petitioner hashad no physical relations with Respondent No.1 after discoveringher adulterous act. The Petitioner states that though the Petitionerand the respondent no.1 are living under the same roof, thePetitioner and Respondent no.1 have not shared the bedroom andhave had no physical relations since the day the Petitionerdiscovered the adultery of Respondent No.1.”

A25. The pleading of the respondent extracted above to the effectthat after September 2016, he has had no physical relationship with theappellant-wife means that he has at least had access to the wife both atthe time when the child was begotten and for full period of three yearseven thereafter. Therefore, the conclusive proof under Section 112 hasactually come into play in this case.B

26. There is another fallacy in the argument of the respondent. Itis the contention of the respondent that he is seeking an adverse inferenceto be drawn only as against the wife under Section 114(h), upon therefusal of the wife to subject the child to DNA test. But the stage atwhich the wife may refuse to subject the child to DNA, would arise onlyCafter the Court comes to the conclusion that DNA test should beordered. To put in simple terms, there are three stages in the process,namely, (i) consideration by the Court, of the question whether to orderDNA test or not; (ii) passing an order directing DNA test, after suchconsideration; and (iii) the decision of the wife to comply or not, withDthe order so passed. The respondent should first cross the outer fencenamely whether DNA test can be ordered or not. It is only after heconvinces the Court to order DNA test and successfully secures anorder that he can move to the inner fence, regarding the willingness ofthe wife to abide by the order. It is only at that stage that the respondentcan, if at all, seek refuge under Section 114(h).E

27. But today, we are actually at the outer fence in this case,adjudicating as to whether DNA test can be ordered at all. Therefore,the respondent cannot jump to the inner fence by-passing the outer fence.

28. Coming to the presumption under Section 114(h), the contentionFof the respondent is obviously misplaced. An adverse inference, in law,can be drawn only against the person who refuses to answer question.In the case on hand, the appellant has dual role to play, namely, that ofthe respondent’s wife and that of Master “X’s” mother. If the appellantdoes or refuses to do something, for the purpose of deriving benefit toherself, an adverse inference can be drawn against her. But in herGcapacity as mother and natural guardian if the appellant refuses tosubject the child to DNA test for the protection of the interests andwelfare of the child, no adverse inference of adultery can be drawnagainst her. By refusing to subject the child to DNA test, she is actuallyprotecting the best interests of the child. For protecting the best interestsHof the child, the appellant-wife may be rewarded, but not punished with

an adverse inference. By taking recourse to Section 114(h), the respondentcannot throw the appellant to catch-22 situation.

29. Therefore, Section 114(h) has no application to case wherea mother refuses to make the child undergo DNA test. It is to beremembered that the object of conducting DNA test on the child isprimarily to show that the respondent was not the biological father. Oncethat fact is established, it merely follows as corollary that the appellantwas living in an adulterous relationship.

30. What comes out of DNA test, as the main product, is thepaternity of the child, which is subjected to test. Incidentally, theadulterous conduct of the wife also stands established, as by-product,through the very same process. To say that the wife should allow thechild to undergo the DNA test, to enable the husband to have the benefitof both the product and the by-product or in the alternative the wifeshould allow the husband to have the benefit of the by-product by invokingSection 114, if she chooses not to subject the child to DNA test, is reallyto leave the choice between the devil and the deep sea to the wife.

31. In fact, in cases of this nature the Court must bear in mindthat Section 114 uses only the word “may” and not the word “shall”.Therefore, the constraints articulated in the exposition to Illustration (h)under Section 114 may dissuade the Court not to presume at all.

32. Hence, we reject the contention of the respondent that whatis sought to be invoked is only Section 114(h) and not Section 112.

Whose rights, are to tilt the balance in the scales of justice?

33. As rightly contended by Shri Huzefa Ahmadi, learned seniorcounsel for the appellant, the question as to whether DNA test shouldbe permitted on the child, is to be analysed through the prism of the childand not through the prism of the parents. The child cannot be used as apawn to show that the mother of the child was living in adultery. It isalways open to the respondent-husband to prove by other evidence, theadulterous conduct of the wife, but the child’s right to identity should notbe allowed to be sacrificed.

34. It is contended by Mr. Kapil Sibal, learned senior counsel forthe respondent that after all the endeavour of every Court should be tofind the truth and that every party to litigation is entitled to produce thebest evidence. Enabling the party to produce the best of evidence, is

Apart and parcel of right to fair trial. Therefore, it is contended by learnedsenior counsel that the refusal to subject the child to DNA test wouldinfringe upon the respondent’s right to fair trial. To buttress the contentionthat the right to privacy of an individual must yield to the right to fair trialof another, reliance is placed upon the decision of this Court in SaharaIndia Real Estate Corporation Limited & Ors. vs. Securities andBExchange Board of India & Anr.[4].

35. Attractive as it may seem at first blush, the said argumentdoes not carry any legal weight. The lis in these cases is between theparties to marriage. The lis is not between one of the parties to themarriage and the child whose paternity is questioned. To enable one ofCthe parties to the marriage to have the benefit of fair trial, the Courtcannot sacrifice the rights and best interests of third party to the lis,namely, the child.

36. Therefore, I concur wholeheartedly with my learned sisterthat the Family Court as well as the High Court were wrong in allowingDthe application of the respondent for subjecting the child to DNA test.Therefore, the appeal deserves to be allowed and accordingly it is allowed.However, this shall not preclude the respondent-husband from leadingany other evidence to establish the allegations made by him against theappellant in the petition for divorce.

Divya Pandey(Assisted by : Shevali Monga, LCRA)

Appeal allowed.