Case Summary
| Citation | DIPANWITA ROY vs RONOBROTO ROY (SC, 2015) |
| Keywords | sec 112, presumption, birth during marriage, legitimacy, DNA test |
| Facts | The petitioner-wife Dipanwita Roy and the respondent-husband Ronobroto Roy, were married at Calcutta in January, 2003. The present controversy emerges from a petition filed under Section 13 of the HMA, 1955 by the respondent, inter alia, seeking dissolution of the marriage. Since, 2007 the petitioner never lived with the respondent and did not share bed at all. On a very few occasions since then the respondent came to the petitioner’s place of residence to collect her things and lived there against the will, to avoid public scandal. She was leading a fast life and has lived in extra marital relationship with the said Mr. Deven Shah and the petitioner had given birth to a son. Husband denied this allegation. Husband moved an application in July 2011, seeking a DNA test of himself and the child. She asserted, that she had continuous matrimonial relationship with husband, and that, husband had factually performed all the matrimonial obligations with her, and had factually cohabited with her. The petitioner-wife accordingly sought the dismissal of the application filed by the husband, for a DNA test of himself and the male child born to wife. The Family Court dismissed the prayer made by the husband. Calcutta High Court directed for DNA Test on the request of Ronobroto Roy. |
| Issues | Whether Court can pass order for DNA Test? |
| Contentions | |
| Law Points | Once the validity of marriage is proved then there is strong presumption about the legitimacy of children born from that wedlock. The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. Even the evidence of adultery by wife which though amounts to very strong evidence, it, by itself, is not quite sufficient to repel this presumption and will not justify finding of illegitimacy if husband has had access. In a matter where paternity of a child is an issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. The court must be reluctant in the use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. When there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. Supreme Court held that order passed by the High Court for DNA Test is correct . But this order was modified and two options were given for wife regarding DNA Test: → In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively dispute regarding paternity. → In second option, if she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. This will protect right to privacy without sacrifice cause of justice. |
| Judgement | The SC held that 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, the Court cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary.The SC upheld the order of HC. |
| Ratio Decidendi & Case Authority | Section 112 of IEA: 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. Section 114 of IEA: Court may presume existence of certain facts – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.Illustration (h) – That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him. |
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