The question as to whether the presumption under Section 112 or the scientific test will prevail has been considered by the apex court in the decision reported in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and Another, (2014) 2 SCC 576 and held that, if there is conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the whole community to be correct, the later must prevail during the trial and in that case it was held that the result of DNA test would prevail.
The presumption under Section 112, Evidence Act, 1872, which reads:-
“112. Birth during marriage, conclusive proof of legitimacy. – The fact that any person who 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.”
# DNA test
Further in the decision reported in Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365 the Honb’le Supreme Court has gone into the question as to whether a person can be compelled to go for DNA test and whether that will intrude into the right of individual privacy and the Supreme Court has held that in appropriate cases directing DNA test to be conducted, if it is required for proper adjudication of the case, it cannot be said to be intruded into the individual privacy.
Further in the same decision it has been observed that whether a person refusing to undergo the test of DNA can be treated as a ground for taking adverse inference against such person also left open to be considered by the trial court on the basis of other evidence available.
So the dictum laid down in both these cases will go to show that when a scientific evidence is required or helpful for the purpose of deciding the point in dispute, then if such evidence is available that will prevail over the presumption under Section 112 Evidence Act regarding the presumption regarding legitimacy of the child.
It is also settled law that court must always be slow in bastardizing a child, but at the same time when that itself is in issue, then an opportunity must be given to the party, who is denying the paternity to prove the same by adducing scientific evidence for enabling the court to consider as to whether he is liable to pay maintenance to that child or not.
See Also : Saji Mathew Vs. Bindu, 2016 (2) KHC 907
In this case, admittedly the petitioner is denying paternity of the 2nd child.
The question as to whether there is a possibility of access and really they have access which resulted in the 2nd pregnancy etc., are matter for evidence.
Before that, an opportunity of getting such a scientific evidence regarding the paternity of the 2nd child whose liability to pay maintenance is in dispute which can be resolved only by getting a scientific evidence which is now available and accepted by the world community at large, should not be shut out at this stage relying on the presumption under Section 112 of the Evidence Act alone as observed by the apex court in the decisions mentioned above.
The court below relied on the presumption under Section 112 of the Evidence Act and came to the conclusion that, the presumption available under Section 112 of the Evidence Act cannot be overridden by allowing the application for DNA test.
So under the circumstances, the reasons stated by the court below for dismissing the application misquoting the observation of the apex court on this aspect is unsustainable in law and the same is liable to be set aside.
In the result, the order of the court below dismissing the application seeking conduct of DNA test to ascertain the paternity of the 2nd respondent is set aside and the same is allowed.
The wife is directed to co-operate with the DNA test to be conducted to ascertain the paternity of the 2nd child.
The petitioner is directed to take steps to deposit the required amount for meeting the expenses for conducting the DNA test.
On making such deposit, the court below is directed to take all steps required for conducting the DNA test as required by the laboratory for this purpose.