NEW DELHI: A 30-year-old scientific advancement clashed with and trumped the colonial-era Indian Evidence Act which had held sway in the Indian judiciary for 142 years, resulting in the triumph of truth but leading to unfortunate stigmatization of an innocent child.
Nandlal was married to Lata in 1990. The husband claimed they were living separately since 1991. Wife claimed that she had been living intermittently with the husband. Lata gave birth to a girl child in 1996 when their marriage was subsisting, even though they were estranged. Wife sought maintenance for her and daughter. The husband claimed since they were living separately since 1991, he could not have fathered the child.
Lata claimed maintenance , only to be rebuffed by Nandlal who insisted that he was not her father.
The wife moved a Maharashtra court which ordered Nandlal to pay Rs 1400 : Rs 900 for the wife and Rs 500 for the child; on the basis of Section 112 of Evidence Act, which said any child born during the subsistence of a marriage, would be presumed to be the legitimate offspring of the couple as long as he had access to her. The dispute reached the Supreme Court after the Bombay HC rejected Nandlal's appeal.
Nandlal asked for a DNA test to verify his claim that he was not the father and the court ordered one after the wife too agreed. The first DNA test, conducted by the regional laboratory at Nagpur, validated Nandlal's position. However, the wife doubted it, leading the court to order a second one. The last test, conducted by the Hyderabad-based central forensic laboratory, also proved Nandalal right.
This brought about a conflict between the fact turned up by the scientific tests and a law that had been scrupulously followed by courts in India for over 140 years, posing a real legal dilemma to a bench comprising justices CK Prasad and JS Khehar.
Nandlal's counsel Anagha Desai argued that a fact could not be brushed under the carpet for the sake of a presumption in law, whereas Manish Pitale, who represented Lata, contended that results of DNA tests should be discarded as the law conclusively presumed that the girl was the legitimate daughter of Nandlal and Lata.
The court was agonized over the wrenching predicament but stayed firm on the side of "truth". It said: "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."
As a result of this ruling from the apex court, DNA test to ascertain parenthood of children born out of subsisting marriages would now become a judicially acceptable exercise.
"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," it said and absolved the husband of the burden of paying maintenance to the child.
Though the court leaned towards science over law, it was not without a heavy heart. "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," the bench of Justices Prasad and Khehar said.
The first question before the court was whether DNA test could be accepted as conclusive evidence. Justice Prasad, writing the judgment for the bench, said: "the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl-child."
"At the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 12 of the Evidence Act conclusively prove that girl child is the daughter of the appellant," Justice Prasad said.
He went on the express the complexity of the question faced by the bench — "The DNA test reports, based on scientific analysis, in no uncertain terms, suggest that the appellant is not the biological father. In such circumstance, which would give way to the other is a complex question posed before us."
The bench said the Evidence Act was enacted when there was no DNA test. Though Section 112 of the Evidence Act puts down a presumption for children born out of subsisting marriages, this presumption could be tested through DNA test, it said.
Original NEWS Source:- http://timesofindia.indiatimes.com/india/Science-beats-law-leaves-young-girl-without-father/articleshow/28570793.cms
Nandlal was married to Lata in 1990. The husband claimed they were living separately since 1991. Wife claimed that she had been living intermittently with the husband. Lata gave birth to a girl child in 1996 when their marriage was subsisting, even though they were estranged. Wife sought maintenance for her and daughter. The husband claimed since they were living separately since 1991, he could not have fathered the child.
Lata claimed maintenance , only to be rebuffed by Nandlal who insisted that he was not her father.
The wife moved a Maharashtra court which ordered Nandlal to pay Rs 1400 : Rs 900 for the wife and Rs 500 for the child; on the basis of Section 112 of Evidence Act, which said any child born during the subsistence of a marriage, would be presumed to be the legitimate offspring of the couple as long as he had access to her. The dispute reached the Supreme Court after the Bombay HC rejected Nandlal's appeal.
Nandlal asked for a DNA test to verify his claim that he was not the father and the court ordered one after the wife too agreed. The first DNA test, conducted by the regional laboratory at Nagpur, validated Nandlal's position. However, the wife doubted it, leading the court to order a second one. The last test, conducted by the Hyderabad-based central forensic laboratory, also proved Nandalal right.
This brought about a conflict between the fact turned up by the scientific tests and a law that had been scrupulously followed by courts in India for over 140 years, posing a real legal dilemma to a bench comprising justices CK Prasad and JS Khehar.
Nandlal's counsel Anagha Desai argued that a fact could not be brushed under the carpet for the sake of a presumption in law, whereas Manish Pitale, who represented Lata, contended that results of DNA tests should be discarded as the law conclusively presumed that the girl was the legitimate daughter of Nandlal and Lata.
The court was agonized over the wrenching predicament but stayed firm on the side of "truth". It said: "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."
As a result of this ruling from the apex court, DNA test to ascertain parenthood of children born out of subsisting marriages would now become a judicially acceptable exercise.
"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," it said and absolved the husband of the burden of paying maintenance to the child.
Though the court leaned towards science over law, it was not without a heavy heart. "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," the bench of Justices Prasad and Khehar said.
The first question before the court was whether DNA test could be accepted as conclusive evidence. Justice Prasad, writing the judgment for the bench, said: "the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl-child."
"At the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 12 of the Evidence Act conclusively prove that girl child is the daughter of the appellant," Justice Prasad said.
He went on the express the complexity of the question faced by the bench — "The DNA test reports, based on scientific analysis, in no uncertain terms, suggest that the appellant is not the biological father. In such circumstance, which would give way to the other is a complex question posed before us."
The bench said the Evidence Act was enacted when there was no DNA test. Though Section 112 of the Evidence Act puts down a presumption for children born out of subsisting marriages, this presumption could be tested through DNA test, it said.
Original NEWS Source:- http://timesofindia.indiatimes.com/india/Science-beats-law-leaves-young-girl-without-father/articleshow/28570793.cms
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