|VOLUME 2|ISSUE 1|JULY 2018|ISSN: 2581-3595|​

PATERNITY: BALANCING THE SCALE OF PRESUMPTION AND TRUTH.

AUTHORED BY: MR. GOVIND KUMAR SAXENA, P.HD (LAW) RESEARCH SCHOLAR AT AMITY UNIVERSITY, HARYANA & CO-AUTHORED BY: MR. MAJ.GEN.PRAVEEN KUMAR SHARMA (RTED.) DIRECTOR, A.L.S., AMITY UNIVERSITY, HARYANA.

ABSTRACT

It is popularly mentioned, “Paternity is a presumption whereas maternity is a truth.” It is in this society that we live in; presumption has more weightage than the truth itself. 

As per the law, it is the presumption that a child born of a woman during subsistence of her legal marriage is fathered by the husband of that woman. It’s not long that this presumption was blindly being applied in the court rooms in disputes related to paternity. The abovementioned presumption has been threaded legally in the Indian Evidence Act, 1872 under section 112. 

It is by the recent decision of the Hon’ble Supreme Court, in the matter of Nandlal Wasudeo Badwaik v Lata Nandlal Badwik & Anr [2014 (2) SCC 576] that “where there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the whole community to be correct, the latter must prevail over the former”.

With this paper, Section 112 would be studied critically to analyze the argument that non-access, as an exception has become an ineffective way of arriving at the truth of one’s legitimacy. This further raises the question upon the need for a suitable amendment to the Section. Where scientific development and its application in the study of evidence has been an important aspect, presumption being heavier than the truth does not add up together.

INTRODUCTION

It is popularly mentioned, “Paternity is a presumption whereas maternity is a truth.” It is in this society that we live in; presumption has more weightage than the truth itself. 

As per the law, it is the presumption that a child born of a woman during subsistence of her legal marriage is fathered by the husband of that woman. It’s not long that this presumption was blindly being applied in the court rooms in disputes related to paternity. The abovementioned presumption has been threaded legally in the Indian Evidence Act, 1872 under section 112. 

In the words of S. 112, Indian Evidence Act, 1872, the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Simply put, the essence of this section is embowed in the principle that when a relationship like marriage, is shown to exist, then prima facie it is presumed to continue. 

As per the section, the fact that any person born during the continuance of a valid marriage or within the time frame of 280 days after the dissolution of the marriage, while the mother remains unmarried, shall be conclusive proof of legitimacy, shifting the burden of proof on the opposing party to establish the contrary. The spirit of the provision is to develop a strong presumption regarding the legitimacy of the child born out of wedlock which can only be displaced by strong, clear and conclusive evidence. Mere balance of probabilities or circumstantial evidence is not enough to prove the contrary. It will also not be wrong to mention that base of S. 112 is presumption of public morality and public policy as it is a well settled principle that odiosa et inhonesta non sunt in lege praesumenda, translated into English as nothing odious or dishonorable will be presumed by the law.[1]

It is by the recent decision of the Hon’ble Supreme Court, in the matter of Nandlal Wasudeo Badwaik v Lata Nandlal Badwaik & Anr [2014 (2) SCC 576] that “where there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the whole community to be correct, the latter must prevail over the former”.

BRIEF FACTS OF THE CASE

The petitioner i.e., Nandlal happens to be the husband of respondent 1 i.e., Lata Badwaik and also is alleged to be the father of respondent 2 Netra alias Neha Badwaik. Their marriage was solemnized on 30.6.1990. The relationship of the couple soon experienced rough waters following which an application of maintenance under S. 125 Code of Criminal Procedure (hereinafter referred as Cr. P.C.) was moved by the respondent 1. The same was dismissed by the order of the

Magistrate dated 10.12.1993. Thereafter, a fresh proceeding under S. 125, Cr. P.C. was sought to be instituted by the wife, for the claim of maintenance for her and her daughter. It was her contention that, she started living with her husband from 20.6.1996 for about two during which she was impregnated. 

The respondent 1 went back to her parental home, where she gave birth to a girl child. The claim of being the biological father to the girl child was resisted by the petitioner along with the assertion of also staying with him since 20.6.1996. The petitioner blatantly denied being the father of respondent 2. He further claimed of having no physical contact with the wife post the year 1991. 

The Ld. Magistrate of the Trial Court accepted the plea of the wife thereby granting her maintenance at the rate of Rs 900 per month to the wife and at the rate of Rs 500 per month for the daughter. Consequentially, the said order was challenged in revision which failed so also a petition under S. 482 Cr. P.C. Aggrieved by these orders, the petitioner filed a special leave petition before the Hon’ble Supreme Court. 

The Hon’ble Supreme Court in the special leave petition then passed an order on 10.1.2011 allowing the petitioner’s prayer for conducting DNA test. The said test was then conducted at Regional Forensic laboratory of Nagpur. The report of the test was submitted, stating that the petitioner i.e., Nandlal Badwaik is excluded to be the biological father of respondent 2 Neha alias Netra, as alleged by respondent 1 Lata Badwaik. The respondents, not satisfied with the report, moved the court to seek a re-test which was allowed by the court. A re-test was conducted at Central Forensic Laboratories, Hyderabad, the report of which reflected the same as the previous test i.e., the petitioner is excluded to be the biological father of respondent 2. 

What’s interesting to note at this stage is that the counsel for the respondents at this contended that the petitioner failed to establish ‘no access’ to his wife at any time within 280 days when she could have conceived respondent 2, following which the direction to conduct a DNA test ought not to have been given and hence the test is to be ignored. 

The said contention was rejected by the Hon’ble Supreme Court observing that, the as per the coordinating bench the circumstances of the case were said to have been evaluated and therefore the direction to conduct a DNA test is valid. Further, the respondents also failed to object the prayer to conduct the DNA test in the first instance and are therefore disallowed from challenging the same now as it is the aftermath of the receipt of the reports which are adverse to them. The challenge by the respondents to the test is merely on the ground that they ought not to have been directed.

ISSUES               

The pertinent issue to consider in the present matter is that a report of a DNA test is considered to be accurate, which was twice directed for. The reports concluded identical results. Contrastingly, the presumption under S. 112 of the Indian Evidence Act is that “the fact that any person born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

Simply stated, on one had the DNA test conducted proved accurately that the petitioner is not the biological father of respondent 2 and on the other he fails to rebut the presumption as per S. 112, Indian Evidence Act. 

DECISION OF THE SUPREME COURT

The operative part of the judgment passed by the Hon’ble Supreme Court in the present matter states that “when the truth or fact is known, in our opinion, there is no need or room for presumption…In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

It seems valid to critically analyse the legal position as provided under S. 112, Indian Evidence Act and thereafter the interpretative steps taken by the Hon’ble Supreme Court, considering the results of the DNA test to prevail of the presumptive stand.

AN ANALYSIS OF SECTION 112, INDIAN EVIDENCE ACT

Conclusive proof as defined under S.4 of the Indian Evidence Act, states that “When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.” It is clear by the very language of the definition that a presumption is raised once a child is proved to be born during the continuance of a valid marriage or within the time frame of 280 days after its dissolution. Thus, a conjoint reading of both the provisions highlight that the birth during the continuance of a valid marriage is proved, which will also act as conclusive proof of another fact, subject to the exception of non-access. Further, as per the common law principle, such a presumption holds much strength unless proven otherwise via rebuttal of impotency or the husband being beyond four seas of England.[2]

112 also draws basis from a Latin maxim pater est quem nuptiae demonstrant, meaning ‘he is the father whom the marriage the marriage indicates’, the traditional explanation of which could be traced back to the time when marriage was looked upon as a sufficient proof to decide upon the question of heirship.[3] It is under the Common Law that a child not proved to be legitimate i.e., a

filius nullius was both denied a name and barred from inheriting property. Thus, it is this stern approach of the Common Law principles, coupled with the notion of social stigma that is attached to the illegitimacy that has led to the strengthening of such a presumption by the legislation.[4] The essence of the above-mentioned row of principles was absorbed by the Indian Courts observing that when the child’s parents have or had a subsisting marital status along with access to each other, it is simply undesirably to deal with the question of paternity of the child.5 A similar understanding by the Hon’ble Supreme Court has also been expressed in the matter Banarsi Dass v Teeku Dutta.[5]

One can understand the terms access and non-access as the existence of an opportunity for the spouses to be involved in a sexual intercourse at any time possible for the husband to have fathered the child in the ordinary course of nature.[6] Even physical disability of the husband can also be construed as proof of non-access.[7] Thus, the cases of impotency, lack of virility or so to say any physical incapability, so as to disable to husband for effective access can be grounds for defence for the husband resisting the allegation. Thus, there is a requirement of high standard of proof for the purpose of displacement of presumption which is consequential to a strong preponderance of evidence indicating non-access which like any other physical fact, can be proved through direct or circumstantial evidence. 

The object of the section is clearly to protect the interest of the new born. As the law stands today, with the standard of proof being so high, it is the husband who falls victim to the harshness of it. Several instances have been observed when the husband struggled to resist the presumption. When the effectiveness of vasectomy[8] was under doubt in the times when no reliable evidence could be given to prove the same, the husband was found in an adverse position. Even in the light of evidence of adultery present, where the wife was found to be staying with her paramour and husband merely residing in the same city was found to be a conclusive proof of access for sexual intercourse between the spouses.[9]

It will not be wrong to say that a statutory recognition given to such a presumption is not achieve that truth that was ought to be sought but to preserve the social values of our society. They are considered to hold a stronger position in our lives. But the very presence of an exception observed by the Hon’ble Supreme Court instils the impression that strives to draw a balance between the preservation of social values and the quest for justice. But the reality lying behind the precedents passed by the Indian Courts also tend to reflect the imbalance, thus compelling a harder fight for the truth. Such an exercise not only causes prejudice to the honest husband if resisting the claim but also tarnishes the image of the courts in the common eyes. 

If considered in the terms of the lawmakers of the pre-information era, proof of non-access might have been a just and right course of procedure so as to arrive at the truth. Back then, non-access could have been easily proved if the husband was a soldier in a war, the return of whom was quite often difficult and prolonged. But today, when even the prisoners of war are also eligible for parole and can sometimes afford to take a flight back home, the concept of non-access cannot be observed in the historical context and is surely needed to be modified. Loosely stated, the opportunity of having sexual intercourse is almost always prevalent.[10]

Thus, in the view of how the interpretation of non-access is being construed in the present day scenario, it seems nearly impossible to establish a conclusive proof to presume legitimacy, especially when there exists a possibility to rebut this presumption by means of DNA evidence.

DNA TEST: RELIEF TO THE HUSBAND OR DOOM FOR THE NEW BORN

Before we deal with the aspect of understanding the DNA test and the nuances related to it, it is pertinent to discuss the power of the court with respect to submission of the party to the DNA test.

In the case of Gautam Kundu v State of West Bengal[11] the Hon’ble Supreme Court observed the same through the following points: 

Blood test cannot be ordered by the Indian Courts as a matter of course;

Applications made with prayers for blood test in the context of conducting a roving enquire are not to be entertained by the Courts.

There must exist a prima facie case, where the husband must establish non-access for the purpose of dispelling the presumption under S. 112 of the Indian Evidence Act.

The Courts are duty bound to thoroughly analyse the consequences of ordering such blood tests, also keeping in mind the future of the child who is under the fear of being declared a bastard or the mother being declared unchaste.

There is a clear prohibition to compulsion to give the blood sample for analysis by anyone.

With that thought in mind, it is now necessary to be aware of a few basics to DNA fingerprinting or analysis. Scientifically speaking, all living beings are composed of cells which are known to us as the smallest and the basic unit of life. An average human being’s body consists of trillions of cells. Each human cell consists of 46 chromosomes, the number of which is same throughout homo-sapiens. Now, these chromosomes consist of a unique signature known as Deoxyribonucleic Acid (DNA) which is the blueprint of an individual. Each of these DNA has a unique pattern, inherited by the biological parents and, thereby reflecting distinct similarity in the molecular structure and genetic code. It is this similarity that is sought to be seek through DNA tests, and thus conclusively determining kinship. After much research and analysis it can positively be stated that the chances of two DNA fingerprints being identical are one in 30 billion to 300 billion. Such a margin, calls for the result to be scientifically accurate. 

Globally, reliance upon the DNA testing has assisted the judicial and investigative machinery to solve and adjudicate crimes of both serious and heinous nature. Yet, there existed a challenge regarding the acceptability of DNA tests in rebutting the conclusive presumption until the Supreme Court’s judgment in Nandlal Wasudeo Badwaik

A similar stance related to the former judgment was taken by the Hon’ble Supreme Court in the matter of Dipanvita Roy[12]where the observation of the court was that where there arises a conflict between the scientific truth and presumption of legitimacy, the former will prevail over the latter. It is because, there exists the element of certainty in the truth, which cannot be ignore on the mere pretext that it might adversely affect the child or not. 

Despite the accuracy of the DNA test, the function of it is still circumstantial. Moreover, it rightly constitutes as a rebuttal only when non-access is interpreted as actual cohabitation. A critique that can be noted here is that, till the time the interpretation of non-access is construed as lack of opportunity for sexual intercourse, the point that a negative DNA test report proves non-access is completely fallacious. It is not to be forgotten that a DNA test report can merely affirm and deny to element paternity but does not speak on anything in relation to an opportunity for sexual intercourse. 

With mass acceptance of results of DNA test in many developed countries, it is necessary to evaluate the same in the context of laws of India. It is not just Nandlal Badwaik that draws our attention to the issue at hand but there also exist other case that have been decided by the Indian courts either relying on the DNA results or accompanying them with other corroborative evidence. Nevertheless, it is the discretion of the judges that still holds a superior position so as to accept the DNA results or not under S. 45 of the Indian Evidence Act, 1872[13].

The case of Sharda v Dharmpal[14]raised the question of compulsion of medical examination to a party to a divorce proceeding. It is a direct issue of violation of right to privacy. It is on these questions, the Hon’ble Supreme Court observed that “if for arriving at the satisfaction of the court and to protect the right of a party to the lis who may otherwise be found incapable of protecting even his own interest, the court passes an appropriate order, the question of such action being in violation to Art. 21 of the Constitution would not arise. The court having regard to Art. 21 of Constitution of India must also see to it that the right of a person to defend himself must be adequately protected.” The same can also be interpreted that where an order for medical examination has been passed against a party, the resistance of which by the party can be construed for an adverse inference against him. A court is enabled to draw adverse inference under S. 114 of Indian Evidence Act, 1872. 

CONCLUSION

A noticeable distinction that can be drawn between Nandlal and other related judgments is that the former is not about the courts passing orders to conduct a DNA test but to adjudicate upon the acceptability of those tests so as to rebut the presumption under S. 112 of Indian Evidence Act, 1872. But the same is not possible for let’s say an instance where the couple is living together but the tests reveal that the husband is not the biological father of the child. In such a case, the presumption under S. 112 cannot be rebutted. 

In Indian society, legitimacy holds a lot of importance i.e., even if there is substantial evidence against a woman who committed adultery with a number of persons; just because the act was committed while she was living with her husband, would prohibit the husband to rebut the presumption and consequentially has to bear the fatherhood of the child. 

The position in common law countries is that the DNA tests have been approved so as to answer the question. The same is not suitable for Indian society as there exists a taboo with regard to illegitimacy and there also exists an absence of legal protection of the illegitimate children. It is accepted that a husband may be obligated to maintain a child who is not his own. But on the other hand, there can be cases where a husband just to satisfy his doubt may drag his wife and children to the court, and even if the test proves him to be the real father, the blow that the reputation of the latter two will face cannot be reimbursed by any means.

The paper cannot be concluded without the mention of the 185th law commission report which suggested the amendment of the provision in such a manner that not only balances the protection to husband but also respects the social values of the nation.[15]  

[1]Sham Lal v Sanjeev Kumar(2009) 12 SCC 454

[2]Evidence: Presumption of Legitimacy. 18(2) Michigan Law Review 146, 147 (1919).

[3] Ayer. Jospeh Cullen. Marriage and Legitimacy. 16(1) Harwad Law Review 22, 23 (1902). 

[4]Presumption of Legitimacy of a Child Born in Wedlock. 33(2) Harvard Law Review 306, 307 (1919).  5C.D. Field’s Commentary on Law of Evidence Act, 1872, Vol. 4, 4779 (Justice Arijit Pasayat ed., 13th edn., 2011).

[5] (2005) 4 SCC 449

[6]Karapaya Servai v Mayandi. AIR 1934 PC 49

[7] Stephen. Sir James Fitzjames. A Digest of The Law of Evidence. 102. (1887)

[8]Chandramathi v. Pazhetti Balan, AIR 1982 Ker 68.

[9]Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454.

[10] Sarathi. Vepa P. Law of Evidence. 265. (2006). 6th ed.

[11] AIR 1993 SC 2295

[12]Dipanwita Roy v. Ronobroto Roy, AIR 2015 SC 418

[13] Section 45, Indian Evidence Act, 1872: “When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.”

[14] AIR 2003 SC 3450

[15] It suggests Section 112 to be like this: “Birth during marriage conclusive proof of legitimacy except in certain cases – The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days,

(i) after the marriage was declared nullity, the mother remaining unmarried, or  (ii) after the marriage was avoided by dissolution, the mother remaining unmarried,  shall be conclusive proof that such person is the legitimate child of that man, unless 

it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or

it is conclusively established, by tests conducted at the expense of that man, namely,

medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or

blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the Court, that that man is not the father of the child; or

DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the Court, that that man is not the father of the child; and

Provided that the Court is satisfied that the test under sub-clause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to accepted procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that that man is not the father of the child. 

Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him.