Case Summary
| Citation | Goutam Kundu v. State of West Bengal AIR 1993 SC 2295 |
| Keywords | sec 112 IEA, presumption, blood test |
| Facts | Goutam Kundu married to second respondent (name of wife is not mentioned in judgment) on 16th January, 1990. They lived together for some time until his wife left the matrimonial home to reside with her parents to prepare for Higher Secondary Examination which commenced on April 5,1990. In month of April, she had shared that she is pregnant. Husband and his family members started to force her for abortion. But she denied. She came back to the matrimonial home during Durga Pooja in the month of October, 1990. A female child was born on January 3, 1991. She was meted out cruel treatment both physically and mentally. She filed a petition for maintenance under Section 125 of the CrPC for her and her child. Court granted that. Husband filed a petition for blood test of his wife and the child in Calcutta High Court. He challenged paternity of daughter. According to him if she is not his child, he would not be liable to pay maintenance. The High Court dismissed the Petition. Husband filed Appeal to the Supreme Court against the decision of High Court. |
| Issues | Whether ‘Blood Group Test’ should be allowed to prove or disprove paternity? If yes, in what circumstances? |
| Contentions | The petitioner disputed the paternity of the child and prayed for a blood group test of the child to prove that he was not the father of the child. According to him, if he could prove the illegitimacy of the child, he would not be liable to pay for the maintenance. |
| Law Points | Under English Law, Courts can give directions for the use of the blood test and taking blood samples from the child, the mother and any person alleged to be the father. However, it is to be stated the court cannot order a person to submit to tests if he/she is not willing, but can draw adverse inferences from a refusal to do so. In India there is no special statute governing this. Neither the Criminal Procedure Code nor the Evidence Act empowers the court to direct such a test to be made. The English law permitting blood test for determining the paternity of legitimacy could not be applied in view of Section 112 of the Evidence Act. Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal. Purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test. Section 112 is based on the well-known maxim “pater est quem nuptioe demonstrant” which means he is the father whom the marriage indicates. The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. Section 112 requires the party disputing the paternity to prove non-access in order to dispel the presumption. ‘Access’ and ‘non-access’ mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation. 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. |
| Judgement | We find no difficulty in upholding the impugned order of the High Court, confirming the order of the Addl. Chief Judicial Magistrate, Alipore in rejecting the application for blood test. The Court said that the motivation behind the application is just to stay away from the installment of the maintenance with no grounds. Likewise, the Criminal appeal was also dismissed. |
| Ratio Decidendi & Case Authority |
Full Case Details
MOHAN, J. – The appellant herein was, married to second respondent on 16th January,
1990 according to Hindu Rites and Customs. They lived together for sometime until second
respondent left the matrimonial home to reside with her parents in order to prepare for Higher
Secondary Examination which commenced on 5.4.90 and continued upto 10.5.90. In the
month of April, 1990 she conceived, on coming to know that she was pregnant, the appellant
and the family members did not want her to beget a child. Therefore she was forced to
undergo abortion which was refused by the second respondent. During the stay she was meted
out cruel treatment both physically and mentally. She came back to the matrimonial home
during Durga Pooja in the month of October, 1990. A female child was born on 3.1.91. She
filed a petition under section 125 Cr. P.C.before the Learned Chief Judicial Magistrate,
Alipore in Misc. Case No. 143 of 1991 both for herself and the child. By an order dated
14.8.91 which was passed ex-parte he awarded a sum of Rs. 300 per mensum to the mother
and Rs.200 to the child. Against that order, he moved a revision to the High Court. That
revision is pending as 1837 of 1991. Thereafter the petitioner filed a Crl. Misc. Case No.143
of 1991 for blood group test of the second respondent and the child.
3. In that proceeding the petitioner herein disputed the paternity of the child and prayed
for blood group test of the child to prove that he was not the father of the child. According to
him if that could be established he would not be liable to pay maintenance. That application
was dismissed on two grounds: (i) there were other methods in the Evidence Act to disprove
the paternity (ii) moreover it is settled law that medical test cannot be conclusive of paternity.
4. Aggrieved by this order, a revision was preferred before the High Court. Dismissing
the revision it was held that section 112 of the Evidence Act says where during the
continuance of valid marriage if a child is born that is a conclusive proof about the legitimacy.
This section would constitute a stumbling block in the way of the petitioner getting his
paternity disproved by blood group test. The English law permitting blood test for
determining the paternity of legitimacy could not be applied in view of section 112 of the
Evidence Act. Therefore it must be concluded that section 112 read with section 4 of the said
Act debars evidence except in cases of non-access for disproving the presumption of
legitimacy and paternity.
6. It is the contention of Mr. Ashok Sen, learned counsel for the appellant that the only
way for the father to disprove the paternity is by blood group test. Having regard to the
development of medical jurisprudence to deny that request to the appellant will be
unreasonable. As a matter of fact, in England, this is commonly resorted to as it will leave no
room for doubt. In 1968 (1) All England Reports p. 20 it was held that even without the
consent of the guardian ad litem, the court had power to order an infant be subjected to a
blood group test. There is no justification for the court below to refuse the same on the ground
that section 112 of the Evidence Act would be an obstacle in seeking relief of blood group
test.
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8. Before we deal with the arguments, we will examine the law as available in England.
At the beginning of the century scientists established that human blood had certain
characteristics which could be genetically transmitted. The first recognized system was ABO
blood group. The blood group of a child is determined by the parents’ genetic make- up but
the number of possibilities is such, that it is not possible to prove that certain individuals are
the father on the basis of comparing blood groups, only, that they are not the father. By 1930s
other immunological test became available. As a result the possibility of establishing paternity
increased.An attempt by way of statutory provision to make blood test compulsory in England
failed in 1938. However, in 1957 the Affiliation Proceedings Act was passed. Under that Act,
it was assumed that a man was the father once a sexual relationship with the mother at the
time of conception was proven unless he could show another man had intercourse with her at
that time. Failing the father’s attempt, the mother’s evidence had to be corroborated by facts
such as blood test etc. Under the Act either party could ask for a blood test and either was
entitled to refuse to take part, although only the mother can apply for maintenance.
11. The Family Reforms Act, 1969 conferred powers on the court to direct taking blood
test in civil proceedings in paternity cases. Courts were able to give directions for the use of
the blood test and taking blood samples from the child, the mother and any person alleged to
be the father. Since the passing of 1969 Act the general practice has been to use blood tests
when paternity is in issue. However, it is to be stated the court cannot order a person to
submit to tests but can draw adverse inferences from a refusal to do so. Now under the Family
Reforms Act, 1987 in keeping with modern thinking on the continuing and shared
responsibility of parenthood, ‘parentage’ rather than paternity has to be determined before the
court. Fathers as well as mothers can apply for maintenance. Therefore contests can include
mother’s denial of paternity. This Act finally removed the legal aid for corroboration of
mother’s statement of paternity.
12. Two cases may be usefully referred to: Re L Lord Denning M.R. [(1968) All England
Reports p. 20] stated thus “but they can say positively that a given man cannot be the father,
because the blood groups of his and the child are so different.” (emphasis supplied).
13. In B.R.B. v. J.B. [(1968) 2 All ER 1023] applied this dictum and held as under:- “The
Country court judge will refer it to a High Court Judge as a matter suitable for ancillary relief,
and the High Court Judge can order the blood test. Likewise, of course, a magistrate’s court
has no power to order a blood test against the will of the parties. The magistrate can only do it
by consent of those concerned, namely, the grown-ups and the mother on behalf of the child;
but, nevertheless, if any of them does not consent, the magistrate can take that refusal into
account adhere to the view which expressed in Re L. that:
“If an adult unreasonably refuses to have a blood test, or to allow a child to
have one, I think that it is open to the court in any civil proceedings (no matter
whether it be a paternity issue or an affiliation summons, or a custody
proceedings) to take his refusalas evidence against him, and may draw an
inference there from adverse to him. This is simple common sense.”
“The conclusion of the whole matter is that a judge of the High Court has power
to order a blood test whenever it is in the best interests of the child. The judges can be
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trusted to exercise this discretion wisely. I would set no limit, condition or bounds to
the way in which judges exercise their discretion.
To object of the court always is to find out the truth. When scientific advances
give us fresh means of ascertaining it, we should not hesitate to use those means
whenever the occasion requires.”
“Having heard full argument on the case, I am satisfied beyond any reasonable
doubt (to use the expression used in rebutting the presumption as to legitimacy) that
Lord Denning, M.R., was right in saying that such an order may be made in any case
where the child is made a party to the proceedings and in the opinion of the judge of the
High Court it is in the child’s best interests that it should be made.”
14. As regard United States the law as stated in Forensic Sciences edited by Cyril H.
Wecht is as under:-
“Parentage testing is the major (but not the exclusive) involvement of forensic
serology in civil cases. The majority of disputed parentage cases involve disputed
paternity, although an occasional disputed maternity, or baby mix-up case does
arise, and can be solved using the tools of forensic serology described in this
chapter. Blood typing has been used to help resolve paternity cases since the mid1920’s. According to Latters, there were 3,000 cases tested in Berlin in 1924, and
Schiff and Boyd said that the first case went to court in Berlin in 1924. Ottenberg, in
this country published paternity exclusion tables in 192 1, as did Dyke in England in
1922. It took somewhat longer to satisfy the courts, both in Europe and in country,
that parentage exclusions based upon blood grouping were completely valid.
Wiener said that he had obtained an exclusion in a paternity case in this country
which reached the courts early in 1933. In January of 1934, Justice Steinbrink of the
New York Supreme Court in Brooklyn ordered that blood tests be performed in a
disputed paternity action, using as precedent a decision by the Italian Supreme
Court of Cassation, but his order was reversed upon appeal. Soon afterward,
however, laws were passed in a number of states providing the courts with statutory
authority to order blood testing in disputed paternity cases.”
Paternity testing has developed somewhat more slowly in the United States than
in certain of the European countries, but today the differences in the number of
systems employed, and judicial acceptance of the results, are no longer that great. A
number of authorities have recently reviewed the subject of paternity testing in some
detail, and in some cases have summarized the results of large number of cases that
they have investigated.
Walker points out that failure to exclude a man, even at the 95 percent level of
paternity exclusion does not mean that the alleged father is proven to be biologic
father, because absolute proof of paternity cannot be established by any known blood
test available. Although this fact is well known and appreciated by workers it), the
field of blood grouping and by attorneys active in this area, it is not generally
understood by the lay public. However, blood group serology, using proven genetic
marker systems, represents the most accurate scientific information concerning
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paternity and is so recognized in the United States, as well as in a number of
countries abroad.”
15. In India there is no special statute governing this.
Neither the Criminal Procedure Code nor the Evidence Act empowers the court to direct
such a test to be made. In 1951 (1) Mad L.J. 580 Polavarapu Venkteswarlu, minor by
guardian and mother Hanwnamma v. Polavarapu Subbayya in that case the application was
preferred under section 151 of the Code of Civil Procedure invoking the inherent powers of
the Court to direct a blood test. The learned judge was of the following view:-
“Section 151, Civil Procedure Code, has been introduced in to the Statute
book to give effect to the inherent powers of Courts as expounded by
Woodroffe, J., in Hukum Chand Boid v. Kamalan and Singh. Such powers can
only be exercised ex debito justitiae and not on the mere invocation of parties or
on the mere volition of courts. There is no procedure either in the Civil
Procedure Code or in the Indian Evidence Act which provides for a test of the
kind sought to be taken by the defendant in the present case. It is said by Mr.
Ramakrishna for the respondent before m e that in England this sort of test is
resorted to by Courts where the question of non-access in connection with an
issue of legitimacy arises for consideration. My attention has been drawn by
learned counsel to page 69 of Taylor’s Principles and Practice of Medical
Jurisprudence, Volume 2, where it is stated thus :
“In Wilson v. Wilson, Lancet [(1942) 1. 570], evidence was given that the
husband’s group was OM, that the wife’s was BM and that the child’s was ABN.
The Court held that the husband was not the father of child, and granted a decree
for nullity.”
“It is also pointed out by learned counsel that in the text books on Medical
Jurisprudence and Toxicology by Rai Bahadur Jaising P. Moi, (8th Edition), at
page 94, reference is made to a case decided by a Criminal Court at Mercare in
June, 1941, in which the paternity and maternity of the child being under dispute,
the Court resorted to the results of the blood grouping test.” That may be.
“But I am not in any event satisfied that if the parties are unwilling to offer
their blood for a test of this kind this Court can force them to do so”
16. The same view was taken by the Kerala High Court in Vasu v. Santha [(1975) Ker.
L.T. 533] as –
“A special protection is given by the law to the status of legitimacy in India.
The law is very strict regarding the type of the evidence which can be let in to rebut
the presumption of legitimacy of a child. Even proof that the mother committed
adultery with any number of men will not of itself suffice for proving the
illegitimacy of the child. If she had access to her husband during the time the child
could have been begotten the law will not countenance any attempt on the part of
the husband to prove that the child is not actually his. The presumption of law of
legitimacy of a child will not be lightly repelled. It will not be allowed to be broken
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or shaken by a mere balance of probability.” The evidence of non-access for the
purpose of repelling it must be strong, distinct, satisfactory and conclusive see
Morris v. Davies [(1837) 5 Cl. & Fin. 163]. The standard of proof in this regard is
similar to the standard of proof of guilt in a criminal case. These rigours are justified
by considerations of public policy for there are a variety of reasons why a child’s
status is not to be trifled with. The stigma of illegitimacy is very severe and we have
not any of the protective legislations as in England to protect illegitimate children.
No doubt, this may in some cases require a husband to maintain children of whom
he is probably not their father. But, the legislature alone can change the rigor of the
law and not the court. The court cannot base a conclusion on evidence different
from that required by the law or decide on a balance of probability which will be the
result if blood test evidence is accepted.”
There is an aspect of the matter also. Before a blood test of a person is ordered his consent
is required. The reason is that this test is a constraint on his personal liberty and cannot be
carried out without his consent. Whether even a legislature can compel a blood test is
doubtful. Here no consent is given by any of the respondents. It is also doubtful whether a
guardian ad litem can give this consent. Therefore, in these circumstances, the learned
Munsiff was right in refusing the prayer for a blood test of the appellant and respondents 2
and 3. The learned Judge is also correct in holding that there was no illegality in refusing a
blood test. The maximum that can be done where a party refuses to have a blood test is to
draw an adverse inference (see in this connection Subayya Gounder v. Bhoopala [AIR 1959
Mad. 396], and the earlier decision of the same court in Venkateswarlu v. Subbayya [AIR
1951 Mad. 910]. Such an adverse inference which has only a very little relevance here will
not advance the appellants case to any extent. He has to prove that he had no opportunity to
have any sexual intercourse with the 1st respondent at a time when these children could have
been begotten. That is the only proof that is permitted under Section 112 to dislodge the
conclusive presumption enjoined by the Section.
17. In Hargavind Soni v. Ramdulari [AIR 1986 MP at 57] held as:-
“The blood grouping test is a perfect test to determine questions of disputed
paternity of a child and can be relied upon by Courts as a circumstantial evidence.
But no person can be compelled to give a sample of blood for blood grouping test
against his will and no adverse inference can be drawn against him for this
refusal.”
18. Blood grouping test is a useful test to determine the question of disputed
paternity. It can be relied upon by courts as a circumstantial evidence which ultimately
excludes a certain invididual as a father of the child. However, it requires to be carefully
noted no person can be compelled to give sample of blood for analysis against her will
and no adverse inference can be drawn against her for this refusal.
19. In Raghunath v. Shardabai [1986 AIR Bom. 388], it was observed blood grouping
test have their limitation, they cannot possibly establish paternity, they can only indicate its
possibilities.
20. In Bhartiraj v. Sumesh Sachdeo [1986 AIR All 2591] held as:-
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“Discussing the evidentiary value of blood tests for determining paternity,
Rayden on Divorce, (1983) Vol. 1) p. 1054 has this to say “Medical Science is
able to analyse the blood of individuals into definite groups: and by examining
the blood of a given man and a child to determine whether the man could or
could not be the father. Blood tests cannot show positively that any man is
father, but they can show positively that a given man could or could not be the
father. It is obviously the latter aspect the proves most valuable in determining
paternity, that is, the exclusion aspect for once it is determined that a man could
not be the father, he is thereby automatically excluded from considerations of
paternity.” When a man is not the father of a child, it has been said that there is
at least a 70 per cent chance that if blood tests are taken they will show
positively he is not the father, and in some cases the chance is even higher:
between two given men who have had sexual intercourse with the mother at the
time of conception, both of whom undergo blood tests, it has likewise been said
that there is a 80 per cent chance that the tests will show that one of them is not
the father with the irresistible inference that the other is the father.”
The position which emerges on reference to these authoritative texts is that depending on
the type of litigation, samples of blood, when subjected to skilled scientific examination, can
sometimes supply helpful evidence on various issues, to exclude a particular parentage set up
in the case. But the consideration remains that the party asserting the claim to have a child and
the rival set of parents put to blood test must establish his right so to do. The court exercises
protective jurisdiction on behalf of an infant. In my considered opinion it would be unjust and
not fair either to direct a test for a collateral reason to assist a litigant in his or her claim. The
child cannot be allowed to suffer because of his incapacity; the aim is to ensure that he gets
his rights. If in a case the court has reason to believe that the application for blood test is of a
fishing nature or designed for some ulterior motive, it would be justified in not acceding to
such a prayer.”
21. The above is the dicta laid down by the various High Courts. In matters of this kind
the court must have regard to section 112 of the Evidence Act. This section is based on the
well known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage
indicates). The presumption of legitimacy is this, that a child born of a married woman is
deemed to be legitimate, it throws on the person who is interested in making out the
illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony
is valid, and that every person is legitimate. Marriage or filiation (parentage) may be
presumed, the law in general presuming against vice and immoratility.
22. It is a rebuttable presumption of law that a child born during the lawful wedlock is
legitimate, and that access occurred between the parents. This presumption can only be
displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.
23. In Smt. Dukhtar Jahan v. Mohammed Faroog [AIR 1987 SC 1049] this court held:
“Section 112 lays down that if a 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 and the mother remains unmarried, it shall be
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taken as 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 anytime
when he could have been begotten. This rule of law based on the dictates of
justice has always made the courts incline towards upholding the legitimacy of a
child unless the facts are so compulsive and clinching as to necessarily warrant a
finding that the child could not at all have been begotten to the father and as such
a legitimation of the child would result in rank injustice to the father. Courts
have always desisted from lightly or hastily rendering a verdict and that too, on
the basis of slender materials, which will have the effect of branding a child as a
bastard and its mother an unchaste woman.”
24. This section requires the party disputing the paternity to prove non-access in order to
dispel the presumption.”Access” and “non-access” mean the existence or non- existence of
opportunities for sexual intercourse; it does not mean actual cohabitation.
25. The effect of this section is this: there is a presumption and a very strong one though a
reubttable one. Conclusive proof means as laid down under section 4 of the Evidence Act.
26. From the above discussion it emerges:-
(1) that courts in India cannot order blood test as matter of course;
(2) Wherever applications are made for such prayers in order to have roving inquiry,
the prayer for blood test cannot be entertained.
(3) There must be a strong prima-facie case in that the husband must establish nonaccess in order to dispel the presumption arising under section 112 of the Evidence 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.
(5) No one can be compelled to give sample of blood for analysis.
Examined in the light of the above, we find no difficulty in upholding the impugned order
of the High Court, confirming the order of the Addl. Chief Judicial Magistrate, Alipore in
rejecting the application for blood test. We find the purpose of the application is nothing more
than to avoid payment of maintenance, without making any ground whatever to have recourse
to the test. Accordingly Criminal Appeal will stand dismissed. Cr.M.P.No. 2224/93 in
S.L.P.(cr) No.2648/92 filed by Respondent No. 2 will stand allowed. She is permitted to
withdraw the amount without furnishing any security.
