Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik : 2014 (2) SCC 576 : AIR 2014 SC 932 : 2014 Cri.L.J. 1098 : 2014 (2) SCALE 99 : 2014 (1) JT 266 : 2014 (1) Crimes 10 : 2014 (2) CrCC 42 : 2014 (1) RCR (Cri) 655 : (2014) (134) AIC 17 : (2014) 1 AICLR 976 : (2014) 2 AJR 392 : (2014) 2 AIICrR 1340 : (2014) (102) ALR 666 : (2014) 1 ALT(Crl) 252 : (2014) 1 BBCJ 362 : (2014) 1 BLJud 184 : (2014) 2 CivCC 220 : (2014) 5 CTC 680 : (2014) 1 DMC 318 : (2014) 2 EastCric 107 : (2014) 1 GLH 203 : (2014) 1 HimLR 78 : (2014) 1 JBCJ 347 : (2014) 2 JCR 106 : (2014) 1 JLJR 423 : (2014) 1 MadLJ(Cri) 246 : (2014) 3 MPHT 326 : (2014) 4 MPJR 214 : (2014) (57) OCR 492 : (2014) 1 PLJR 364 : (2014) RajCriC 248 : (2014) 2 RajLW 1662 : (2014) 1 UC 292 : 2014 (1) LRC 1 (SC)
Section 125---Grant of maintenance to child---Paternity of child---Proof---Plea of husband that he had no access to wife when child was begotten---DNA test reports show that appellant is not biological father of child---When there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by world community to be correct, the latter must prevail over the former---Appellant cannot be compelled to bear fatherhood of child---Impugned order set aside---Appeal allowed---Evidence Act, 1872, Section 112.
Held : 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, 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.
The distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.
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 appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice.
As regards the authority of this Court in the case of Kamti Devi (supra), this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the said background i.e. non-access of the husband with the wife, this Court held that the result of DNA test "is not enough to escape from the conclusiveness of Section 112 of the Act". The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of the fact that DNA test is scientifically accurate. We hasten to add that in none of the cases referred to above, this Court was confronted with a situation in which DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. In view of what we have observed above, these judgments in no way advance the case of the respondents.
In the result, we allow this appeal, set aside the impugned judgment so far as it directs payment of maintenance to respondent No. 2. However, we direct that the payments already made shall not be recovered from the respondents.