Calcutta High Court
Gautam Kundu vs State Of West Bengal And Sm. Shaswati ... on 22 April, 1992
Equivalent citations: (1992)2CALLT130(HC), 96CWN751
JUDGMENT Gitesh Ranjan Bhattacharjee, J.
1. This criminal revision is directed against the Order dated 1st February, 1992 passed by the learned Additional Chief Judicial Magistrate, 24-Parganas (South), Alipore in Misc. Case No. 143 of 1991 (T.R. 48/92). Smt. Shaswati Kundu, the OP. herein filed the said case being case No. 143/91 for maintenance under Section 125, Criminal Procedure Code for herself and her minor child against her husband Goutam Kundu, the petitioner herein. "The marriage between the parties took place on 16th January, 1990 and Smt. Shaswati Kundu gave birth to a daughter on 3rd January, 1991. The husband disputed the paternity of the child and prayed before the Court below for blood group test of the child with a view to proving that it was somebody else through whom the wife conceived the child and consequently he was not liable to pay maintenance for the child which is not his child. The learned Court below by its impugned order dated the 1st February, 1992 rejected the prayer of the husband. It is against that order of rejection the petitioner husband has come up before this Court.
2. Curiously enough I find that neither the Court below considered a vital aspect of law involved in the matter nor did the learned Advocates appearing in the Court below raise the point there, namely, the question whether in law the investigation of paternity of child by blood group test can at all be embarked upon in view of the specific provision of Section 112 of the Indian Evidence Act, 1872. The said section runs thus :
"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."
Clear enough, Section 112 of the Evidence Act itself stands as a stumbling block in the way of the husband getting his paternity of the child disproved through blood group test. Mr. A. P. Chatterjee appearing for the petitioner husband submitted that science has by now advanced to a considerable extent and through scientific test of blood group of the child and the man it is possible to resolve the dispute of paternity at least in certain cases. He further submitted that if the result of the blood group test shows that the man is not the father of the child the result is a certainty, but if however the test shows that the man be the father of the child the uncertainty however will continue to remain. In other words, blood group test may absolve some one from paternity with certitude, if the test answers that way, but where however, the test answers the alternative way, namely that the man may be the father of the child the vice of uncertainty however remains unlifted. Mr. Chatterjee submitted that the petitioner husband in this case should not be debarred from having recourse to necessary blood group test so that in case the result of the test is negative it will be scientifically established that he is not the biological father of the child and in that case there will be no question of his paying maintenance for the child. Mr. Chatterjee in this connection also relied upon two English decisions reported in (1968) 1 All England Law Reports 20 (Re : L) and (1968)2 All England Law Reports 1023 (B.R.B. v. J.B.). He referred in particular to the judgment delivered by Lord Denning, M.R. in the said cases.
3. Before I proceed to discuss the said two English decisions cited by Mr. Chatterjee, I would advert to Section 4 of the Indian Evidence Act for. appreciating the meaning of the expression 'conclusive proof as the term has been used in Section 112 of the Act as referred to earlier. In Section 4 conclusive proof has been defined thus :-"When one fact is declared by this Act to be conclusive proof of another, the Court shall on proof of the fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it". It is thus evident that the legislature has made it rigidly clear that in respect of anything which is regarded as proved on the strength of the definition of 'conclusive proof no evidence can be given for the purpose of disproving it. Therefore if it is proved that there was marriage between the parties and the child was born during the continuance of that marriage it becomes a 'conclusive proof that the child is the legitimate child of the husband and no evidence, be it in the form of a scientific devise like blood group test or otherwise, can be allowed to be given to disprove that the husband is the father of the child except in the manner as particularly provided in Section 112. To understand the full import of the meaning of the term 'conclusive proof as given in Section 4 of the Evidence Act, we may profitably look to two other provisions regarding the terms 'may presume' and 'shall presume' as contained in the said section. In respect of the term 'may presume' it has. been provided therein that whenever it is provided by the Evidence Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it. Regarding the term 'shall presume' it has been provided therein that whenever it is directed by the Evidence Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. We thus find that in respect of a fact which the Court 'may' presume it is open to the Court to regard such fact as proved, unless and until it is disproved, but the Court also has an option not to regard such fact as proved on presumption and rather to' call for proof of it. But in respect of a fact which the Court 'shall presume' the Court has no option to call for proof of it and has to accept such fact as proved unless and until it is disproved. In both the cases of 'may presume' and 'shall presume' it is however open to the party adversely affected by such presumption to adduce evidence to disprove the presumed fact but in case of a fact which the Court has to regard as conclusively proved by reason of the meaning artributed to the term 'conclusive proof by Section 4 of the Evidence Act, it is not open either to the Court or to the party adversely affected by such conclusive presumption to accept or lead evidence in disproof of that conclusive presumption.
4. In the present case the marriage between the parties is not disputed, nor is it disputed that the child was born during the continuance of that marriage. In view of these undisputed facts a conclusive presumption therefore arises under Section 112 not only that the child is the child of the husband but also that the child is the legitimate child of the husband and no evidence for disproving this conclusive presumption is permissible under the Indian Law except to a very limited extent. The only corridor of a narrow width that has been left open by the legislature for a contending husband to dispute the paternity of the child is however delineated clearly in Section 112 of the Indian Evidence Act. Section 112 itself: provides that the conclusive presumption about the paternity and legitimacy of the child born in the wedlock will hold the field, unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. Obviously blood group test for the purpose of determining the paternity and legitimacy of a child inspite of whatsoever scientific advantage it may have in the matter of resolving dispute about paternity is not permissible in view of the express statutory provision of Section 112 of the Indian Evidence Act.
5. Of the two English decisions cited by Mr. Chatterjee the facts in the decision reported in (1968) 2 All England Law Reports, 1023 (B.R.B. v. J.B.) were these. The husband petitioner brought a petition for divorce against the wife alleging that she had been guilty of adultery with the co-respondent as a result of which she gave birth to a child. The child was however born to the wife during the continuance of the wedlock between the husband and wife. The wife and the co-respondent registered the co-respondent as the father of the child. It however transpired that the husband met the wife for one night and had sexual intercourse with her on that night at about the time when the child could have been conceived. Neither the husband nor the wife however thought that the husband was the father of the child. As it however appeared that either the husband or the co-respondent could be the father it became necessary to settle the issue of paternity in connection with the question of proper arrangements for the care and upbringing of the child. All three of the adults, the husband, the wife and the co-respondent had a blood test. The question arose whether the child should have a blood test for determining the paternity issue. In the circumstances; of the case, it was held by the Court of Appeal, Civil Division that it was clearly in the child's interest to have a blood test, since it would settle definitely one way or the other which of the men was. the father. Lord Denning, M.R. in that case further observed thus : -
"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 interest of the child. The judges can be trusted to exercise this discretion wisely. I would set no limit, condition or bounds to the way in which judges exercise their discretion. The 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."
6. The facts of the other case reported in (1968) 2 All England Law Reports 20 (Re : L.) are these. A child was born to the wife during the continuance of the wedlock between the husband and the wife. The wife, however had sexual intercourse regularly with the husband as well as with another man (the party cited) during the period when the child was conceived. She herself did not know which of the men was the father of the child. It might have been either of them. In the circumstances, the question of presumption of legitimacy and the question of taking of blood tests in exercise of custodial jurisdiction fell on consideration. In that connection Lord Denning, M.R. made the following observations :-
"The presumption of legitimacy goes back for centuries, long before blood tests. In order to decide the paternity of a child, the court in those days had to rely on circumstantial evidence. Illegitimacy was a grave stigma ; and carped severe penalties on the child. So the courts raised a presumption of legitimacy. When a married woman bore a child, her husband was presumed to be the father unless the contrary was proved. The presumption was so strong that it could not be rebutted except by proof beyond reasonable doubt that the husband whose wife had committed adultery. The burden on him is not so heavy nowadays. In divorce cases the presumption can be rebutted by showing, on the preponderance of probabilities, that the husband could not be the father [see Blyth v. Biyth (I)]. Logically the position should be the same in legitimacy proceedings or in any proceedings where paternity is in issue. It would be absurd to have a different result in a divorce case from other cases, so that a child would be found legitimate in one and illegitimate in another."
7. It was further observed thus :-
"Blood tests are a modern development. Medical science is able to put the blood of individuals into definite groups ; and by examining the blood of a given man and a child, the medical men can tell whether the man could or could not be the father of the child. They cannot say positively of any man that he is the father, but they can say positively that a given man cannot be the father, because the blood groups of him and the child are so different. The science has achieved such a degree of accuracy that, when a man is in truth not the father of a child, and desires to prove it, there is at least a seventy per cent chance, if blood tests are taken, that the doctors can prove positively that he is not the father. In some cases the chance is even higher. As for instance, when as in the present case, we know that one or other of two given men is the father, there is a ninety per cent chance that the doctors can say positively that one of them is not the father, with the irresistible1 inference that the other man is the father".
8. Unmistakably however the principle regarding the permissibility of blood test for determining the paternity or legitimacy of a child as enunciated in the aforesaid two English decisions cannot, inspite of great respect for the said decisions, be applied here in the background of the provisions of the Indian Law, particularly Section 112 of the Indian Evidence Act. From the observations quoted above, it will appear that although in the English Law the presumption of legitimacy of a child born during the wedlock was extremely strong in earlier days yet the same could be rebutted by proof beyond reasonable doubt that the husband was not the father. It would also appear therefrom that nowadays that heavy burden has become comparatively lighter and the presumption of legitimacy can now be rebutted by showing on the preponderance of probabilities that the husband could not be the father. Under the English Law, therefore, inspite of the presumption of legitimacy it was and is however open to the husband to rebut the presumption by showing that "he could not be the father of the child", the scope of which is much wider than the scope of rebutting that presumption by "non-access" under the Indian Law. There is no doubt that this burden on the husband even at the time of rendering the aforesaid decisions under the English Law could be discharged by adducing evidence that he was not father of the child. In that background blood group test which is a modern scientific technique was held available as possible evidence having bearing on the question of legitimacy and paternity. Section 112 read with Section 4 of the Indian Evidence Act debars evidence except of non-access for disproving the presumption of legitimacy and paternity engendered by the said Section 112. The only limited scope permitted under the statutory provisions of Indian Law for dislodging the said presumption is to show that the parties to the marriage had no access to each other at the time when the child have been begotten. In the two cited English decisions each of the two men including the husband had access to the woman and had sexual intercourse with her at the time when the child was begotten so that either of the two men could be the father of the child. Since the English Law permitted rebuttal of presumption of legitimacy, to use the language of Lord Dennings, M.R. "by showing, on the preponderance of probabilities, that the husband could not be the father and since there was no legal bar as to the manner in which that could be shown provided it could be shown by adducing any sort of admissible evidence, there was no difficulty for the Court to allow the husband to avail himself of the evidence of blood test for showing that he was not the father of the child inspite of the fact that the husband admittedly had access to and sexual intercourse too within the wife at the relevant time. Under Indian Law however in a similar situation the husband is debarred from disputing the legitimacy and paternity of the child inspite of the fact that another man also had regular sexual intercourse with his wife at the time when the child was conceived. The husband is debarred under the Indian Law in such a situation from challenging the paternity and legitimacy of the child because he having had access to his wife at the relevant time has no opportunity to take the plea of non-access which is the only permissible plea for dislodging the presumption of legitimacy under Section 112, although it is quite possible that the other man who also had sexual intercourse with the woman was the biological father of the child. Again it may be pointed out here that the onus lies heavily under the Indian Law on him who takes the plea of non-access for defeating the statutory presumption of legitimacy and paternity. Since however Indian Law unlike English Law does not at all permit evidence to show that the husband of the woman is not the father of the child born to the woman during the wedlock except by showing that he had no access to the wife at any time when the child could have been begotten, there is no scope of permitting the husband to avail of blood test for dislodging the presumption of legitimacy and paternity arising of Section 112 of the Evidence Act. The said English decisions are, therefore, not applicable to our present case which has to be decided within the parameter of Indian Law on the subject.
9. In (Bhagwan Bakshi v. Mahesh Bakshi) it has been held that where a person is admittedly born after his mother's marriage to a certain person the onus of establishing non-access and physical incapacity to procreate on the part of the husband lies heavily on those who allege such person to be an illegitimate son. It has also been held therein that the word "access" in Section 112 of the Evidence Act means 'effective access' and physical incapacity to procreate, if established, amounts to non-access within the meaning of Section 112. In (Venkateswarlu v. Venkatanarayan) it has been held that the presumption which Section 112 contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child, and that access and non-access connote existence and non-existence of opportunities for material intercourse. It has been further held in that case that non-access can be established not merely by positive or direct evidence, but it can be proved like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue, though, as the presumption of legitimacy is highly favoured by law, it is necessary that proof on non-access must be clear and satisfactory. In (Perumal v. Ponnuswami) it has been held that the presumption of legitimacy under Section 112 would arise even when the husband and the wife living separately but in the same village unless absence of access could be established for displacing the presumption under Section 112 of the Evidence Act. It is also to be seen that once the conclusive presumption of legitimacy arising of the provision of Section 112 of the Evidence Act is displaced by proving non-access it becomes at once established that the child born to the woman was not the child of the husband. Be that as it may, since section; 112 of the Indian Evidence Act is a bar determining the paternity and legitimacy of a child born during the wedlock of the husband and wife by invoking the scientific innovation of blood group test the impugned order of the learned Magistrate-refusing, of course on a different ground, the prayer for blood test does not require any interference. This Revisional Application is therefore dismissed. Inform the court below accordingly.