It is not new for Supreme Court to face novel questions of its citizens for adjudications, however on 6th January, 2014, bench of Justice Chandramauli Prasad and Justice Jagdish Singh Khekar, were faced with a very pertinent question, which had digged up the well-talked about debate of “Science v. Law”.
The question arose in the case of Nandlal Wasudeo Baidwak v. Lata Nandlal Baidwak (Criminal Appeal No.24 of 2014) wherein paternity of a child was at stake, and court had to opine on Section 112 of the Evidence Act which reads as follows:
“112. Birth during marriage, conclusive proof of legitimacy.–
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.”
The facts of the case showed that the respondent, the mother of the child and petitioner the alleged father were living separately after one year of marriage. The wife claimed that she stayed with the husband for two years from 1996, when she conceived and therefore by virtue of Section 112, the petitioner should be declared the husband, and since during the filing of this matter, she was staying separately, she should be awarded the maintenance for herself and their baby girl.
Supreme Court had also ordered for the purpose of ascertaining paternity two DNA tests. One of the DNA test was conducted in the Forensic Science Laboratory in Nagpur and other in the Central Forensic Science Laboratory Minsitry of Home Affairs Hyderabad , and both the tests ruled in the favor of the petitioner clearly declaring that petitioner could have fathered the child.
These tests were challenged by the respondents, as being contrary to principle laid down in Section 112, which under law raises presumption of paternity. The respondents also vehemently contended that DNA test cannot be conclusive according to the ruling of Kamti Devi v. Poshi Ram [(2001) 5 SCC 311] wherein the Supreme Court held as follows “The result of a genuine 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, the conclusiveness in law would remain irrebuttable. This may look hard from the point 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 favor of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception”.
However, the court felt the need to change the perspective of not being hard on the father, the petitioner, and held that the petitioner should not be burdened with a responsibility of the child, which he has not fathered, and tilted in favor of the test reports, which stated that petitioner was not the father of the child.
The reasoning used by the court is based on the sound reasoning that when there are accurate scientific proof should be seen in their proper light, and since the respondents have not questioned the genuineness of the reports, and have only contended that these reports stand to be over-powered by section 112, the court relied completely on the reports.
Court pointed out the distinction between legal fiction and presumption under law, and said that Section 112 acts as presumption under law and not legal fiction and Section 112 being a presumption of law has to satisfy certain conditions. As the petitioner had already pleaded that by way of Section 112, he had no “access to his wife” who had estranged him very early in marriage, this section cannot be invoked. The respondent also did not contend that the reports were not genuine.
Court admitted that though factually the baby was born during the continuance of valid marriage, but petitioner did prove that he did not have any access to the wife, during their separation, which is further corroborated with DNA reports.
Speaking about whether the presumption of Section 112 should be given weightage over the scientific evidence, the court gave the judgment taking the DNA reports as accurate. The ratio of the judgment is as follows,
“We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein
but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. “
Indeed, it was a judgment, which could form the hot topic for discussion for evidentiary value of forensic tests, as well as make lawyers try their hand at new ways of coming with evidence, which has the backing of science to them.