DIPANWITA ROYversusRONOBROTO ROY

•                       [2014] 11 S.C.R. 553


                          DIPANWITA ROY                             A
                                  v.
                          RONOBROTO ROY
                   (Civil Appeal No. 9744 of 2014)
                        OCTOBER 15, 2014
                                                                    B
     [JAGDISH SINGH KHEHAR AND R.K. AGRAWAL, JJ.]

          Hindu Marriage Act, 1955 - s. 13 - Divorce petition under
    - Husband seeking divorce on ground of infidelity - On
    application of husband, direction issued by High Court for C
    holding of DNA test of the husband and the child born to wife
    - Propriety - Held: Depending on facts and circumstances of
    a case, it is permissible for a Court to direct the holding of
    DNA examination - On facts, but for the DNA test, it was
    impossible for the husband to establish and confirm the D
    assertions made in the divorce petition, alleging infidelity -
    Direction issued by High Court therefore justified - However,
    wife given liberty to comply with or disregard the said direction
    of High Court in order to preserve her right of individual
    privacy to the extent possible, without sacrificing the cause of E
    justice - Evidence Act, 1872 - s. 112 and s. 114, Illustration
    (h).

           Disposing of the appeal, the Court

         HELD:1.1. Proof based on a DNA test would be               F
    sufficient to dislodge a presumption under Section 112 of
    the Indian Evidence Act. Depending on the facts and
    circumstances of the case, it would be permissible for a
    Court to direct the holding of a DNA examination, to
    determine the veracity of the allegation(s), which              G
    constitute one of the grounds, on which the concerned
    party would either succeed or lose. If the direction to hold
    such a test can be avoided, it should be so avoided. The

                                 553                                H
    554      SUPREME COURT REPORTS            [2014] 11 S.C.R.    •


A reason is that the legitimacy of a child should not be put
  to peril. [Paras 9, 10) (570-E-F; 570-F-H]

       1.2. In the instant case, but for the DNA test, it would
  be impossible for the respondent-husband to establish
  and confirm the assertions made in the pleadings.
8 Therefore, the direction issued by the High Court was fully
  justified. DNA testing is the most legitimate and
  scientifically perfect means, which the husband could
  use, to establish his assertion of infidelity. This should
  simultaneously be taken as the most authentic, rightful
C and correct means also with the wife, for her to rebut the
  assertions made by the respondent-husband, and to
  establish that she had not been unfaithful, adulterous or
  disloyal. If the appellant-wife is right, she shall be proved
  to be so. [Para 11] [571-D-E]
0
      Bhabani Prasad Jena vs. Convenor Secretary, Orissa
  State Commission for Women and another (2010) 8 SCC
  633: 201 O (9) SCR 457; and Nandlal Wasudeo Badwaik vs.
  Lata Nand/al Badwaik and another (2014) 2 SCC 576: 2014
E (1) SCR 120 - relied on.
      Chilukuri Venkateshwarly vs. Chilukuri Venkatanarayana
  1954 SCR 424; Gautam Kundu vs. State of West Bengal and
  another (1993) 3 SCC 418: 1993 (3) SCR 917; Kamti Devi
  and another v. Poshi Ram AIR 2001 SC 2226: 2001 (3) SCR
F 729; Sham Lal @ Ku/deep vs. Sanjeev Kumar and others
  (2009) 12 SCC 454: 2009 (5) SCR 1049 - referred to.

          Karapaya Servai v. Mayandi AIR 1934 PC 49 - referred
    to.
G
        2. However, while upholding the order passed by the
    High Court, it is just and appropriate to record a caveat,
    giving the appellant-wife liberty to comply with or
    disregard the order passed by the High Court, requiring

H
•       DIPANWITA ROY v. RONOBROTO ROY

the holding of the DNA test. In case, she accepts the
direction issued by the High Court, the DNA test will
                                                            555


                                                                  A

determine conclusively the veracity of accusation 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                  B
concerned Court, by drawing a presumption of the nature
contemplated in Section 114 of the Indian Evidence Act,
especially, in terms of illustration (h) thereof. This course
has been adopted to preserve the right of individual
privacy to the extent possible, without sacrificing the           c
cause of justice. [Para 12] [571-F-H; 572-A, DJ
                     Case Law ·Reference:
    AIR 1934 PC 49           referred to           Para 8
    1954 SCR 424             referred to           Para 8         D

    1993 (3) SCR 917         referred to           Para 8
    2001 (3) SCR 729         referred to           Para 8
    2009 (5) SCR 1049        referred to           Para 8         E
    2010 (9) SCR457          relied on             Para 9
    2014 (1) SCR 120         relied on             Para 9

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.               F
9744 of 2014.

    From the Judgment and Order dated 06.12.2012 of the
High Court at Calcutta in C.O. No. 3590 of 2012.

    Soumya Chakarborty (for Dharma Bir Raj Vohra) for the         G
Appellant.

    Ranjan Mukherjee, S.C. Ghosh for the Respondent.

    The Judgment of the Court was delivered by
                                                                  H
    556      SUPREME COURT REPORTS                   [2014] 11 S.C.R •


A      JAGDISH SINGH KHEHAR, J. 1. The petitioner-wife
  Dipanwita Roy and the respondent-husband Ronobroto Roy,
  were married at Calcutta. Their marriage was registered on
  9.2.2003. The present controversy emerges from a petition filed
  under Section 13 of the Hindu Marriage Act, 1955 (hereinafter
B referred to as the 'Act') by the respondent, inter alia, seeking
  dissolution of the marriage solemnised between the petitioner-
  wife and the respondent-husband, on 25.1.2003.

         2. One of the grounds for seeking divorce was, based on
c   the alleged adulterous life style of the petitioner-wife. For his
    above assertion, the respondent-husband made the following
    allegations in paragraphs 23 to 25_of his petition.

          "23. That since 22.09.2007 the petitioner never lived with
          the respondent and did not share bed at all. On a very few
D         occasion since then the respondent came to the
          petitioner's place of residence to collect her things and
          lived there against the will of all to avoid public scandal the
          petitioner did not turn the respondent house on those
          occasion.
E
          24. That by her extravagant life style the respondenthas
          incurred heavy debts. Since she has not disclosed her
          present address to bank and has only given the address
          of the petitioner. The men and collection agents of different
F         banks are frequently visiting the petitioner's house and
          harassing the petitioner. They are looking for the
          respondent for recovery of their dues. Notice from Attorney
          Firms for recovery of due from the respondent and her
          credit card statements showing heavy debts are being
G         sent to the petitioner's address. The respondent purchused
          one car in 2007 with the petitioner's uncle, Shri Subrata
          Roy Chowdhary as the guarantor. The respondent has
          failed to pay the installments regularly.

          25. That the petiitoner states that the respondent has gone
H
•       DIPANWITA ROY v. RONOBROTO ROY
           (JAGDISH SINGH KHEHAR, J.]
    astray. She is leading a fast life and has lived in extra
    marital relationship with the said Mr. Deven Shah. a well
                                                              557

                                                                      A

    to do person who too is a carrier gentlemen and has given
    birth to a child as a result of her cohabitation with Shri
    Deven Shah. It is reported that the respondent has given
    birth to a baby very recently. The respondent is presently        B
    living at the address as mentioned in the cause title of the
    plaint."

                                              (emphasis is ours)

      3. The above factual position was contested by the              C
petitioner-wife in her reply wherein she, inter alia, submitted as
under:

    "That the statements made in paragraph Nos. 5 and 6 of
    the plaint are admitted by the respondent to the extent that      0
    the daughter namely "Biyas" is residing in the custody of
    the respondent's mother with the arrangement of the
    petitioner and as a result of which the petitioner used to
    come at his mother in law's place and spending days
    therein and the respondent used to spend time with him
                                                                      E
    and carrying on their matrimonial obligation which includes
    co-habitation. ·

    That the statements made in paragraph No.7 in the plaint
    is absolutely false, concocted, untrue, frivolous, vexatious
    and made with the purpose of harassing the respondent             F
    and the petitioner is call upon to prove the allegation intoto.
    It is categorically denied by the respondent that she was
    a selfish person, very much concern about her own self
    and own affairs and without any concern for the petitioner
    as alleged. The respondent further denied tha: she was self       G
    willed, arrogant and short tempered and she used to fly into
    rage every now and then over small matter and used to
    quarrel with the petitioner and his mother as alleged. The
    respondent further denied and disputes that she used to
    go out every now and then according to her whims without          H
    558       SUPREME COURT REPORTS                 [2014] 11 S.C.R. •


A         informing either the petitioner and his mother as alleged.
          That the respondent further denies and disputes that she
          failed to disclose her whereabouts and used to stay out
          for long hours as alleged. The respondent further denies
          and disputes that she does not care little for the feelings
B         of either the petitioner or his mother as alleged. The
          respondent further denies and disputes that she got
          extremely irritated and used to quarrel with the petitioner
          whenever the petitioner tried to speak to her as alleged.

          That the statements made in paragraph 23 in the plaint are
c         absolutely imaginative, concocted and false and the same
          are being made for the purpose of this case. The
          respondent denies and disputes in its present form the
          statement they lead an extravagant life style and thereby
          she incurred debts as alleged therein and the respondent
D         provided her matrimonial house address to the bank as
          because the same is her permanent address after her
          marriage. The respondent denies and disputes the
          statement that men and collection agent of different banks
          were frequently visiting the petitioner's house and
E         harassing the petitioner and they are looking for the
          respondent for recoverv of dues as alleged therein. The
          respondent is to state and submit that many a times at the
          behest of the petitioner she used to purchase many things
          for him and spent lot of money while attending dinner and
F         lunch at clubs and restaurants with the petitioner. The
          respondent is to further state and submit on repeated
          insistence of the petitioner the respondent purchased a car
          on credit for accommodating herself smooth journey at her
          office work as well as for other places and in such event
G         the petitioner promised that he would pay 50% of the EMI
          in respect of purchase of the car which is actually failed to
          contribute. It is needless to mention that the respondent
          had incurred some debts ·due to financial recession in
          consequences of which she lost her job and as a result of
H         that she failed to make payment of her outstanding to the
•           DIPANWITA ROY v. RONOBROTO ROY
                [JAGDISH SINGH KHEHAR, J.]

        bank in spite of her willingness although her·parents
                                                                  559

                                                                          A
        extended their helpful hands to accommodate her which
        could enable to come out from the debts but the petitioner
        is such situation kept himself silent.

        That the statements made in paragraph no.24 in the plaint         B
        are false, untrue. frivolous and concocted and the same
        are being made with a malafide intention for degrading and
        harassing the respondent in the eye of society in order to
        get the divorce from her. The respondent strongly denies
        and disputes the statement that she is leading a fast life        c
        in extra marital relationship with one Mr. Deven Shah and
        she had given a birth of a child as a result of cohabitation
        with Shrl Deven Shah as alleged. The respondent further
        denies and disputes the statement that she ever live in the
        address mentioned in the case title in the plaint as alleged      0
        and the petitioner is call upon to prove the statements into.

        The respondent is to state and submit that she had no
        extra marital relationship with one Mr. Deven Shah. It is
        pertinent to mention that the respondent is having a
        continuous matrimonial relationship with the petitioner and       E
        the petitioner too performed the matrimonial relation to as
        well as the cohabitation with the respondent in great spirit
        and as a result of which a male chid was born. At this stage
        raising question regarding birth of the child would actually
        put adverse effect not only towards the family but also           F
        towards of the mind of the tender aged child and this
        unscrupulous attitude is actually goes against the concept
        of welfare of the child."

                                                  (emphasis is ours)      G

    A perusal of the written statement filed on behalf of the
    petitioner-wife reveals that the petitioner-wife expressly asserted
    the factum of cohabitation during the subsistence of their
    marriage, and also denied the accusations levelled by the
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    560      SUPREME COURT REPORTS                  [2014] 11 S.C.R.        •


A   respondent-husband of her extra marital relationship, as
    absolutely false, concocted, untrue, frivolous and vexatious.


         4. In order to substantiate his claim, in respect of the
B   infidelity of the petitioner-wife, and to establish that the son born
    to her was not his, the respondent-husband moved an
    application on 24.7.2011 seeking a DNA test of himself (the
    respondent-husband) and the male child born to the petitioner-
    wife. The purpose seems to be, that if the DNAexamination
C   reflected, that the male child born to the petitioner-wife, was not
    the child of the respondent-husband, the allegations made by
    the respondent-husband in paragraphs 23 to 25 of the petition,
    would stand substantiated. The petitioner-wife filed written
    objections thereto, categorically asserting, that the factual
D   position depicted in the application filed by the respondent-
    husband was false, frivolous, vexatious and motivated. It was ·
    asserted that the allegations were designed in a sinister
    manner, to cas~ a slur on the reputation of the petitioner-wife.
    The petitioner-wife strongly denied and disputed the statement
E   made at the behest of the respondent-husband to the effect,
    that she was leading a fast life in extra marital relationship with
    Mr. Deven Shah, and had given birth to a child as a result of
    her cohabitation with the said Mr. Deven Shah. She also
    asserted, that she had a continuous matrimonial relationship
F   with the respondent-husband, and that; the respondent-husband
    had factually performed all the matrimonial obligations with her,
    and had factually cohabited with her. The petitioner-wife
    accordingly sought the dismissal of the application filed by the
    respondent-husband, for a DNA test of himself and the male
    child born to the petitioner-wife. The respondent-husband filed
G   a reply affidavit reiterating the factual position contained in the
    application, and thereby also repudiating the assertions made
    by the petitioner-wife in her written objections.

          5. The Family Court by an order dated 27.08.2012
H
•       DIPANWITA ROY v. RONOBROTO ROY
            [JAGDISH SINGH KHEHAR, J.)

dismissed the prayer made by the respondent-husband, for
conducting the afore-mentioned DNA test
                                                              561


                                                                      A


      6. Dissatisfied with the order passed by the Family Court
on 27.8.2012, the respondent-husband approached the High
Court at Calcutta (hereinafter referred to as the 'High Court')       B
in its civil revisional jurisdiction by filing CO No.3590 of 2012
under Article 227 of the Constitution of India. The High Court
allowed the petition filed by the respondent-husband vide an
order dated 6.12.2012. The operative part of the impugned
order dated 6.12.2012 is being extracted hereunder:                   c
    "CO No.3590 of 2012 is disposed of by setting aside the
    order impugned and by directing the DNA test of the son
    of the wife to be conducted at the Central Forensic
    Science Laboratory on December 20, 2012. The wife will
    accompany her son to the laboratorv at 11 am when the             D
    petitioner herein will also be present and the DNA
    samples of the child and the husband will be obtained by
    the laboratorv in presence of both the husband and wife.
    The expenses for the procedure will be borne by the
    husband and the result will be forwarded by the laboratory        E
    as expeditiously as possible to be husband, the wife and
    the trial Court. The expenses for such purpose will be
    obtained in advance by the laboratory from the husband.

    In addition, prior to December 20, 2012 the husband will          F
    deposit a sum of Rs.1 lakh with the trial court which will
    stand forfeited and made over to the wife in the event the
    paternity test on the basis of the DNA results shows the
    husband to be the father of the child. In the event the result
    reveals that the petitioner is not the father of the child, the   G
    money will be refunded by the trial Court to the petitioner
    herein.

     The wife has sought to file an affidavit, but such request
     has been declined. The wife seeks a stay of operation of
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    562      SUPREME COURT REPORTS                  [2014] 11 S.C.R . •


A         this order, which is refused. CO No.3590 of 2012 is
          disposed of without any order as to costs.

          A copy of this order will immediately be forwarded to the
          laboratory by the husband such that the laboratory is ready
B         to obtain the DNA sample on the specified date."

          (emphasis is ours)

          Aggrieved with the order passed by the High Court on
    6.12.2012, the petitioner-wife has approached this C1Jurt by
C   filing the instant special leave petition. Notice was issued by
    this Court on 15.2.2013. The respondent-husband has entered
    appearance. Pleadings are complete.

          7. Leave granted.
D        8. Learned counsel for the appellant-wife, in the first
    instance, invited our attention to Section 112 of the Indian
    Evidence Act. The same is being extracted hereunder:

          "112. Birth during marriage, conclusive proof of legitimacy-
E         The fact that any person was born during the continuance
          of a valid marriage between his mother and any man, or
          within two hundred and eighty days after its dissolution, the
          mother remaining unmarried, shall be conclusive proof that
          he is the legitimate son of that man, unless it can be
F         shown that the parties to the marriage had no access to
          each other at any time when he could have been
          begotten."

  Based on the aforesaid provision, learned counsel for the
  appellant-wife drew our attention to decision rendered by the
G Privy Council in Karapaya Servai v. Mayandi, AIR 1934 PC 49,
  wherein it was held, that the word 'access' used in Section 112
  of the Evidence Act, connoted only the existence of an
  opportunity for marital intercourse, and in case such an
  opportunity was shown to have existed during the subsistence
H
•           DIPANWITA ROY v. RONOBROTO ROY
               [JAGDISH SINGH KHEHAR, J.]
                                                                  563


    of a valid marriage, the provision by a fiction of law, accepted
    the same as conclusive proof of the fact that the child born
                                                                         A

    during the subsistence of the valid marriage, was a legitimate
    child. It was the submission of the learned counsel for the
    appellant-wife, that the determination of the Privy Council in
    Karapaya Servai's case(sllpra) was approved by this Court in         B
    Chilukuri Venkateshwarly vs. Chilukuri Venkatanarayana, 1954
    SCR 424. Learned counsel for the appellant-wife also invited
    our attention to a decision rendered by this Court in Gautam
    Kundu VS. State of West Bengal and another, (1993) 3 sec
    418, wherein this Court, inter alia, held as under:                  c
        "(,1) That Courts in India cannot order blood test as a
         matter of course.

        (2) Wherever applications are made for such prayers in
        order to have roving inquiry, the prayer for blood test cannot   D
        be entertained.

        (3) There must be a strong prima facie case in that the
        husband must establish non-access in order to dispel the
        presumption arising under Section 112 of the Evidence            E
        Act.

        (4) The Court must carefully examine as to what would be
        the consequence of ordering the blood test; whether it will
        have the effect of branding a child as a bastard and the
        mother as an unchaste woman.                                     F

        (5) No one can be compelled to give samle of blood for
        analysis."

    Reliance was also placed on the decision rendered by this            G
    Court in Kamti Devi and another v. Poshi Ram, AIR 2001 SC
    2226, wherefrom, the following observations made by this Court,
    were sought to be highlighted:

         "10. But Section 112 itself provides an outlet to the party
        who wants to escape from the rigour of that conclusiveness.      H
    564      SUPREME COURT REPORTS                   [2014] 11 S.C.R.      •

A         The said outlet is, if it can be shown that the parties had
          no access to each other at the time when the child could
          have been begotten the presumption could be rebutted. !n
          other words, the party who wants to dislodge the
          conclusiveness has the burden to show a negative, not
B         merely that he did not have the opportunity to approach his
          wife but that she too did not have the opportunity of
          approaching him during the relevant time. Normally, the
          rule of evidence in other instances is that the burden is on
          the party who asserts the positive, but in this instance the
c         burden is cast on the party who pleads the negative. The
          raison d'etre is the legislative concern against
          illegitimatizing a child. It is a sublime public policy that
          children should not suffer social disability on account of the
          laches or lapses of parents.
D         11. We may remember that Section 112 of the Evidence
          Act was enacted at a time when the modern scientific
          advancements with Dioxy Nucleric Acid (DNA) as well as
          Ribonucleic Acid (RNA) tests were not even in
          contemplation of the legislature. The result of a genuine
E         DNA test is said to be scientifically accurate. But even that
          is not enough to escape from the conclusiveness of
          Section 112 of the Act. e.g., if a husband and wife were
          living together during the time of conception but the DNA
          test revealed that the child was not born to the husband.
F         the conclusiveness in law would remain unrebuttable. This
          may look hard from thepoint of view of the husband who
          would be compelled to bear the fatherhood of a child of
          which he may be innocent. But even in such a case the
          law leans in favour of the innocent child from being
G         bastardized if his mother and her spouse were living
          together during the time of conception. Hence the question
          regarding the degree of proof of non-access for rebutting ·
          the conclusiveness must be answered in the light of what
          is meant by access or non-access as delineated above.
H
•           DIPANWITA ROY v. RONOBROTO ROY
               [JAGDISH SINGH KHEHAR, J.]
                                                                     565


        12 ..... lts corollary is that the burden of the plaintiff-husband
        should be higher than the standard of preponderance of
                                                                             A

        probabilities. The standard of proof in such cases must at
        least be of a degree in between the two as to ensure that
        there was no possibility of the child being conceived
        through the plaintiff-husband. "                                     B

                                                    (emphasis is ours)

    Lastly, learned counsel for the appellant-wife, placed reliance
    on the decision rendered by this Court in Sham Lal @ Kuldeep
    vs. Sanjeev Kumar and others, (2009) 12 SCC 454, wherein it              C
    was inter alia, held as under:

        "Once the validity of marriage is proved then there is strong
        presumption about the legitimacy of children born from that
        wedlock. The presumption can only be rebutted by a strong.           D
        clear, satisfying and conclusive evidence. The
        presumption cannot be displaced by mere balance of
        probabilities or any circumstance creating doubt. Even the
        evidence of adultery by wife which though amounts to very
        strong evidence, it. by itself, is not quite sufficient to repel     E
        this presumption and will not justify finding of illegitimacy
        if husband has had access. In the instant case, admittedly
        the plaintiff and Defendant 4 were born to D during the
        continuance of her valid marriage with B. Their marriage
        was in fact never dissolved. There is no evidence on
        record that B at any point of time did not have access to            F
        D."

                                                    (emphasis is ours)

         It was, therefore, the vehement contention of the learned           G
    counsel for the appellant-wife, that the impugned order passed
    by the High Court directing, holding of a DNA test, of the
    respondent-husband and the male child born to the appellant-
    wife, may be set aside.
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A
    566       SUPREME COURT REPORTS                  [2014] 11 S.C.R.


        9. All the judgments relied upon by the learned counsel for
                                                                           •
  the appellant were on the pointed subject of the legitimacy of
  the child born during the subsistence of a valid marriage. The
  question that arises for consideration in the present appeal,
  pertains to the alleged infidelity of the appellant-wife. It is not
s the husband's desire to prove the legitimacy or illegitimacy of
  the child born to the appellant. The purpose of the respondent
  is, to establish the ingredients of Section 13(1 )(ii) of the Hindu
  Marriage Act, 1955, namely, that after the solemnisation of the
  marriage of the appellant with the respondent, the appellant had
c voluntarily engaged in sexual intercourse, with a person other
  than the respondent. There can be no doubt, that the prayer
  made by the respondent for conducting a DNA test of the
  appellant's son as also of himself, was aimed at the alleged
  adulterous behaviour of the appellant. In the determination of
D the issue in hand, undoubtedly, the issue of legitimacy will also
  be incidentally involved. Therefore, insofar as the present
  controversy is concerned, Section 112 of the Indian Evidence
  Act would not strictly come into play. A similar issue came to
  be adjudicated upon by this Court in Bhabani Prasad Jena.vs.
E Convenor Seeretary, Orissa State Commission for Women and
  another, (2010) 8 SCC 633, wherein this Court held as under:

          "21. In a matter where paternity of a child is in issue before
          the court. the use of DNA test is an extremely delicate and
          sensitive aspect. One view is that when modern science
F         gives the means of ascertaining the paternity of a child,
          there should not be any hesitation to use those means
          whene•:er the occasion requires. The other view is that the
          court must be reluctant in the use of such scientific
          advances and tools which result in invasion of right to
G         privacy of an individual and may not only be prejudicial to
          the rights of the parties but may have devastating effect
          on the child. Sometimes the result of such scientific test
          may bastardise an innocent child even though his mother
          and her spouse were living together during the time of
H         conception.
•      DIPANWITA ROY v. RONOBROTO ROY
          [JAGDISH SINGH KHEHAR, J ]

    22. In our view. when there is apparent conflict between
                                                              567



    the right to privacy of a person not to submit himself forcibly
                                                                      A

    to medical examination and duty of the court to reach the
    truth. the court must exercise its discretion only after
    balancing the interests of the parties and on due
    consideration whether for a just decision in the matter.          B
    DNA test is eminently needed. DNA test in a matter relating
    to paternity of a child should not be directed by the court
    as a matter of course or in a routine manner, whenever
    such a request is made. The court has to consider diverse
    aspects including presumption under Section 112 of the            C
    Evidence Act; pros and cons of such order and the test of
    "eminent need" whether it is not possible for the court to
    reach the truth without use of such test.

    23.There is no conflict in the two decisions of this ourt,        D
    namely, Gautam Kundu vs. State of West Bengal (1993)
    3 sec 418 and Sharda VS. Dharmpal (2003) 4 sec 493.
    In Gautam Kundu, it has been laid down that courts in India
    cannot order blood test as a matter of course and such
    prayers cannot be granted to have roving inquiry; there           E
    must be strong prima facie case and the court must
    carefully examine as to what would be the consequence
    of ordering the blood test. In Sharda, while concluding that
    a matrimonial court has power to order a person to
    undergo a medical test, it was reiterated that the court
                                                                      F
    should exercise such a power if the applicant has a strong
    prime facie case and there is sufficient material before the
    court. Obviously, therefore, any order for DNA test can be
    given by the court only if a strong prima facie case is made
    out for such a course.
                                                                      G
    24. Insofar as the present case is concerned. we have
    already held that the State Commission has no authority,
    competence or power to order DNA test. Looking to the
    nature of proceedings with which the High Court was
    concerned, it has to be held that the High Court exceeded         H
A
    568      SUPREME COURT REPORTS                 [2014] 11 S.C.R.


          its jurisdiction in passing the impugned order. Strangely,
                                                                         •
          the High Court overlooked a very material aspect that the
          matrimonial dispute between the parties is already
          pending in the court of competent jurisdiction and all
          aspects concerning matrimonial dispute raised by,the
B         parties in that case shall be adjudicated and determined
          by that court. Should an issue arise before the matrimonial
          court concerning the paternity of the child. obviously that
          court will be competent to pass an appropriate order at
          the relevant time in accordance with law. In any view of the
c         matter. it is not possible to sustain the order passed by
          the High Court. "

                                                  (emphasis is ours)

  It is therefore apparent, that despite the consequences of a
D DNA test, this Court has concluded, that it was permissible for
  a Court to permit the holding of a DNA test, if it was eminently
  needed, after balancing the interests of the parties. Recently,
  the issue was again considered by this Court in Nandlal
  Wasudeo Badwaik vs. Lala Nandlal Badwaik and another,
E (2014) 2 SCC 576, wherein this Court held as under:

          "15. Here, in the present case, the wife had pleaded that
          the husband had access to her and, in fact, the child was
          born in the said wedlock, but the husband had specifically
F         pleaded that after his wife left the matrimonial home, she
          did not return and thereafter, he had no access to her. The
          wife has admitted that she had left the matrimonial home
          but etgain joined her husband. Unfortunately, none of the
          courts below have given any finding with regard to this plea
G         of the husband that he had not any access to his wife at
          the time when the child could have been begotten.

          16. As stated earlier. the DNA test is an accurate test and
          on that basis it is clear that the appellant is not the
          biological father of the girl child. However. at the same
H
•       DIPANWITA ROY v. RONOBROTO ROY
           [JAGDISH SINGH KHEHAR, J ]
    time. the condition precedent for invocation of Section 112
    of the Evidence Act has been established and no finding
                                                               569

                                                                      A

    with regard to the plea of the husband that he had no
    access to his wife at the time when the child could have
    been begotten has been recorded. Admittedly, the child
    has been born during the continuance of a valid ·marriage.        B
    Therefore. the provisions of Section 112 of the Evidence
    Act conclusively prove that Respondent 2 is the daughter
    of the appellant. At the same time. the DNA test reports.
    based on scientific analysis. in no uncertain terms suggest
    that the appellant is not the biological father. In such          c
    circumstances. which would give way to the other is a
    complex question posed before us.

    17. We may remember that Section 112 of the Evidence
    Act was enacted at a time when the modern scientific              D
    advancement and DNA test were not even in
    contemplation of the legislature. The result of DNA test is
    said to be scientifically accurate. Although Section 112
    raises a presumption of conclusive proof on satisfaction
    of the conditions enumerated therein but the same is
                                                                      E
    rebuttable. The presumption may afford legitimate means
    of arriving at an affirmative legal conclusion. While the truth
    or fact is known, in our opinion, there is no need or :oom
    for any presumption. Where there is evidence to the
    contrarv. the presumption is rebuttable and must yield to
                                                                      F
    proof. The interest of justice is best served by ascertaining
    the truth and the court should be furnished with the best
    available science and may not be left to bank upon
    presumptions. unless science has no answer to the facts
    in issue. In our opinion. when there is a conflict between a
    conclusive proof envisaged under law and a proof based            G
    on scientific advancement accepted by the world
    community to be correct. the latter must prevail over the
    former.

    18. We must understand the distinction between a legal            H
      570       SUPREME COURT REPORTS                 [2014) 11 S.C.R..


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

            19. The husband's plea that he had no access to the wife
            when the child was begotten stands proved by the DNA
            test report and in the face of it. we cannot compel the
 c          appellant to bear the fatherhood of a child. when the
            scientific reports prove to the i:ontrarv. We are conscious
            that an innocent child may not be bastardised as the
            marriage between her mother and father was subsisting
            at the time of her birth. but in view of the DNA test reports
 D
            and what we have observed above. we cannot forestall the
            consequence. It is denying the truth. "Truth must triumph"
            is the hallmark of justice."

                                                     (emphasis is ours)
 E
      This Court has therefore clearly opined, that proof based on a
      DNA test would be sufficient to dislodge, a presumption under
      Section 112 of the Indian Evidence Act.

 F       10. It is borne from the decisions rendered by this Court
   in Bhabani Prasad Jena (supra), and Nandlal Wasudeo
   Badwaik (supra), that depending on the facts and
   circumstances of the case, it would be permissible for a Court
   to direct the holding of a DNA examination, to determine the
 G veracity of the allegation(s), which constitute one of the grounds,
   on which the concerned party would either succeed or lose.
   There can be no dispute, that if the direction to hold such a test
   can be avoided, it should be so avoided. The reason, as
   already recorded in various judgments by this Court, is that the
 H legitimacy of a child should not be put to peril.
•             DIPANWITA ROY v. RONOBROTO ROY
                 [JAGDISH SINGH KHEHAR, J.)
             11. The question that has to be answered in this case, is
      in respect of the alleged infidelity of the appellant-wife. The
                                                                      571


                                                                             A

      respondent-husband has made clear and categorical
      assertions in the petition filed by him under Section 13 of the
    , Hindu Marriage Act, alleging infidelity. He has gone to the extent
     'of naming the person, who was the father of the male child born        B
      to the appellant-wife. It is in the process of substantiating his
      allegation of infidelity, that the respondent-husband had made
      an application before the Family Court for conducting a DNA
      test, which would establish whether or not, he had fathered the
      male child born to the appellant-wife. The respondent feels that       C
      it is only possible for him to substantiate the allegations levelled
      by him (of the appellant-wife's infidelity) through a DNA test We
      agree with him. In our view, but for the DNA test, it would be
    · impossible for the respondent-husband to establish and confirm
      the assertions made in the pleadings. We are therefore                 D
    ' satisfied, that the direction issued by the High Court, as has
      been extracted hereinabove, was fully justified. DNA testing is
      the most legitimate and scientifically perfect means, which the
       husband could use, to establish his assertion of infidelity. This
      should simultaneously be taken as the most authentic, rightful         E
      and correct means also with the wife, for her to rebut the
      assertions made by the respondent-husband, and to establish
      that she had not been unfaithful, adulterous or disloyal. If the
      appellant-wife is right, she shall be proved to be so.
                                                                             F
          12. We would, however, while upholding the order passed
     by the High Court, consider it just and appropriate to record a
     caveat, giving the appellant-wife liberty to comply with or
     disregard the order passed by the High Court, requiring the
     holding of the DNA test In case, she accepts the direction              G
     issued by the High Court, the DNA test will determine
     conclusively the veracity of accusation 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 concerned Court, by               H
A
    572      SUPREME COURT REPORTS                  [2014) 11 S.C.R


    drawing a presumption of the nature contemplated in Section
    114 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:

B         "114. Court may presume existence of certain facts - The
          Court may presume the existence of any fact which it thinks·
          likely to have happened, regard being had to the common
          course of natural events, human conduct and public and
          private business, in their relation to the facts of the
          particular case.
c
          Illustration (h) - That if a man refuses to answer a question
          which he is not compelled to answer by law, the answer, if
          given, would be unfavourable to him."

.o This course has been adopted to preserve the right of individual
  privacy to the extent possible. Of course, without sacrificing the
  cause of justice. By adopting the above course, the issue of
  infidelity alone would be determined, without expressly
  disturbing the presumption contemplated under Section 11.2 of
E the Indian Evidence Act. Even though, as already stated above,
  undoubtedly the issue of legitimacy would also be incidentally
  involved.

          13. The instant appeal is disposed of in the above terms.

F   Bibhuti Bhushan Bose                             Appeal disposed of.