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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9744 OF 2014
(Ar!"# $%& $' SLP(C( N$.)*94 $' 201+(
Dipanwita Roy . Appellant
versus
Ronobroto Roy . Respondent
J U D , M E N T
J-#.!/ S"#/ 0/1/-r2 J.
1. The petitioner-wife Dipanwita Roy and the respondent-husband Ronobroto
Roy, were married at Calcutta. Their marriae was reistered on !."."##$. The
present controversy emeres from a petition filed under %ection 1$ of the &indu
'arriae Act, 1!(( )hereinafter referred to as the *Act*+ by the respondent, inter
alia, see,in dissolution of the marriae solemnised between the petitioner-wife
and the respondent-husband, on "(.1."##$.
". -ne of the rounds for see,in divorce was, based on the alleed
adulterous life style of the petitioner-wife. .or his above assertion, the
respondent-husband made the followin alleations in pararaphs "$ to "( of his
petition/
"$. That since "".#!."##0 the petitioner never lived with the
respondent and did not share bed at all. -n a very few occasion since
then the respondent came to the petitioner*s place of residence to
collect her thins and lived there aainst the will of all to avoid public
scandal the petitioner did not turn the respondent house on those
occasion.
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"1. That by her e2travaant life style the respondent has incurred
heavy debts. %ince she has not disclosed her present address to ban,
and has only iven the address of the petitioner. The men and
collection aents of different ban,s are fre3uently visitin the
petitioner*s house and harassin the petitioner. They are loo,in for
the respondent for recovery of their dues. 4otice from Attorney .irms
for recovery of due from the respondent and her credit card statements
showin heavy debts are bein sent to the petitioner*s address. The
respondent purchased one car in "##0 with the petitioner*s uncle, %hri
%ubrata Roy Chowdhary as the uarantor. The respondent has failed to
pay the installments reularly.
"(. That the petiitoner states that the respondent has one astray.
%he is leadin a fast life and has lived in e2tra marital relationship with
the said 'r. Deven %hah, a well to do person who too is a carrier
entlemen and has iven birth to a child as a result of her cohabitation
with %hri Deven %hah. 5t is reported that the respondent has iven
birth to a baby very recently. The respondent is presently livin at the
address as mentioned in the cause title of the plaint.6
)emphasis is ours+
$. The above factual position was contested by the petitioner-wife in her reply
wherein she, inter alia, submitted as under/
7That the statements made in pararaph 4os. ( and 8 of the plaint are
admitted by the respondent to the e2tent that the dauhter namely
79iyas6 is residin in the custody of the respondent*s mother with the
arranement of the petitioner and as a result of which the petitioner
used to come at his mother in law*s place and spendin days therein
and the respondent used to spend time with him and carryin on their
matrimonial obliation which includes co-habitation.
That the statements made in pararaph 4o.0 in the plaint is absolutely
false, concocted, untrue, frivolous, ve2atious and made with the
purpose of harassin the respondent and the petitioner is call upon to
prove the alleation intoto. 5t is cateorically denied by the respondent
that she was a selfish person, very much concern about her own self
and own affairs and without any concern for the petitioner as alleed.
The respondent further denied that she was self willed, arroant and
short tempered and she used to fly into rae every now and then over
small matter and used to 3uarrel with the petitioner and his mother as
alleed. The respondent further denied and disputes that she used to
o out every now and then accordin to her whims without informin
either the petitioner and his mother as alleed. That the respondent
further denies and disputes that she failed to disclose her whereabouts
and used to stay out for lon hours as alleed. The respondent further
denies and disputes that she does not care little for the feelins of
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either the petitioner or his mother as alleed. The respondent further
denies and disputes that she ot e2tremely irritated and used to 3uarrel
with the petitioner whenever the petitioner tried to spea, to her as
alleed.
That the statements made in pararaph "$ in the plaint are absolutely
imainative, concocted and false and the same are bein made for the
purpose of this case. The respondent denies and disputes in its
present form the statement they lead an e2travaant life style and
thereby she incurred debts as alleed therein and the respondent
provided her matrimonial house address to the ban, as because the
same is her permanent address after her marriae. The respondent
denies and disputes the statement that men and collection aent of
different ban,s were fre3uently visitin the petitioner*s house and
harassin the petitioner and they are loo,in for the respondent for
recovery of dues as alleed therein. The respondent is to state and
submit that many a times at the behest of the petitioner she used to
purchase many thins for him and spent lot of money while attendin
dinner and lunch at clubs and restaurants with the petitioner. The
respondent is to further state and submit on repeated insistence of the
petitioner the respondent purchased a car on credit for accommodatin
herself smooth :ourney at her office wor, as well as for other places
and in such event the petitioner promised that he would pay (#; of the
<'5 in respect of purchase of the car which is actually failed to
contribute. 5t is needless to mention that the respondent had incurred
some debts due to financial recession in conse3uences of which she
lost her :ob and as a result of that she failed to ma,e payment of her
outstandin to the ban, in spite of her willinness althouh her parents
e2tended their helpful hands to accommodate her which could enable
to come out from the debts but the petitioner is such situation ,ept
himself silent.
That the statements made in pararaph no."1 in the plaint are false,
untrue, frivolous and concocted and the same are bein made with a
malafide intention for deradin and harassin the respondent in the
eye of society in order to et the divorce from her. The respondent
stronly denies and disputes the statement that she is leadin a fast
life in e2tra marital relationship with one 'r. Deven %hah and she had
iven a birth of a child as a result of cohabitation with %hri Deven %hah
as alleed. The respondent further denies and disputes the statement
that she ever live in the address mentioned in the case title in the plaint
as alleed and the petitioner is call upon to prove the statements into.
The respondent is to state and submit that she had no e2tra marital
relationship with one 'r. Deven %hah. 5t is pertinent to mention that
the respondent is havin a continuous matrimonial relationship with the
petitioner and the petitioner too performed the matrimonial relation to
as well as the cohabitation with the respondent in reat spirit and as a
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result of which a male chid was born. At this stae raisin 3uestion
reardin birth of the child would actually put adverse effect not only
towards the family but also towards of the mind of the tender aed
child and this unscrupulous attitude is actually oes aainst the
concept of welfare of the child.6
)emphasis is ours+
A perusal of the written statement filed on behalf of the petitioner-wife reveals
that the petitioner-wife e2pressly asserted the factum of cohabitation durin the
subsistence of their marriae, and also denied the accusations levelled by the
respondent-husband of her e2tra marital relationship, as absolutely false,
concocted, untrue, frivolous and ve2atious.
1. 5n order to substantiate his claim, in respect of the infidelity of the
petitioner-wife, and to establish that the son born to her was not his, the
respondent-husband moved an application on "1.0."#11 see,in a D4A test of
himself )the respondent-husband+ and the male child born to the petitioner-wife.
The purpose seems to be, that if the D4A e2amination reflected, that the male
child born to the petitioner-wife, was not the child of the respondent-husband, the
alleations made by the respondent-husband in pararaphs "$ to "( of the
petition, would stand substantiated. The petitioner-wife filed written ob:ections
thereto, cateorically assertin, that the factual position depicted in the
application filed by the respondent-husband was false, frivolous, ve2atious and
motivated. 5t was asserted that the alleations were desined in a sinister
manner, to cast a slur on the reputation of the petitioner-wife. The petitioner-wife
stronly denied and disputed the statement made at the behest of the
respondent-husband to the effect, that she was leadin a fast life in e2tra marital
relationship with 'r. Deven %hah, and had iven birth to a child as a result of her
cohabitation with the said 'r. Deven %hah. %he also asserted, that she had a
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continuous matrimonial relationship with the respondent-husband, and that, the
respondent-husband had factually performed all the matrimonial obliations with
her, and had factually cohabited with her. The petitioner-wife accordinly souht
the dismissal of the application filed by the respondent-husband, for a D4A test
of himself and the male child born to the petitioner-wife. The respondent-
husband filed a reply affidavit reiteratin the factual position contained in the
application, and thereby also repudiatin the assertions made by the petitioner-
wife in her written ob:ections.
(. The .amily Court by an order dated "0.#=."#1" dismissed the prayer
made by the respondent-husband, for conductin the afore-mentioned D4A test.
8. Dissatisfied with the order passed by the .amily Court on "0.=."#1", the
respondent-husband approached the &ih Court at Calcutta )hereinafter referred
to as the *&ih Court*+ in its civil revisional :urisdiction by filin C- 4o.$(!# of
"#1" under Article ""0 of the Constitution of 5ndia. The &ih Court allowed the
petition filed by the respondent-husband vide an order dated 8.1"."#1". The
operative part of the impuned order dated 8.1"."#1" is bein e2tracted
hereunder/
7C- 4o.$(!# of "#1" is disposed of by settin aside the order
impuned and by directin the D4A test of the son of the wife to be
conducted at the Central .orensic %cience >aboratory on December
"#, "#1". The wife will accompany her son to the laboratory at 11 am
when the petitioner herein will also be present and the D4A samples of
the child and the husband will be obtained by the laboratory in
presence of both the husband and wife. The e2penses for the
procedure will be borne by the husband and the result will be
forwarded by the laboratory as e2peditiously as possible to be
husband, the wife and the trial Court. The e2penses for such purpose
will be obtained in advance by the laboratory from the husband.
5n addition, prior to December "#, "#1" the husband will deposit a sum
of Rs.1 la,h with the trial court which will stand forfeited and made over
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to the wife in the event the paternity test on the basis of the D4A
results shows the husband to be the father of the child. 5n the event
the result reveals that the petitioner is not the father of the child, the
money will be refunded by the trial Court to the petitioner herein.
The wife has souht to file an affidavit, but such re3uest has been
declined. The wife see,s a stay of operation of this order, which is
refused. C- 4o.$(!# of "#1" is disposed of without any order as to
costs.
A copy of this order will immediately be forwarded to the laboratory by
the husband such that the laboratory is ready to obtain the D4A
sample on the specified date.6
)emphasis is ours+
Arieved with the order passed by the &ih Court on 8.1"."#1", the petitioner-
wife has approached this Court by filin the instant special leave petition. 4otice
was issued by this Court on 1(."."#1$. The respondent-husband has entered
appearance. ?leadins are complete.
0. >eave ranted.
=. >earned counsel for the appellant-wife, in the first instance, invited our
attention to %ection 11" of the 5ndian <vidence Act. The same is bein e2tracted
hereunder/
711". 9irth durin marriae, conclusive proof of leitimacy- The fact that
any person was born durin the continuance of a valid marriae
between his mother and any man, or within two hundred and eihty
days after its dissolution, the mother remainin unmarried, shall be
conclusive proof that he is the leitimate son of that man, unless it can
be shown that the parties to the marriae had no access to each other
at any time when he could have been beotten.6
9ased on the aforesaid provision, learned counsel for the appellant-wife drew our
attention to decision rendered by the ?rivy Council in @arapaya %ervai v.
'ayandi, A5R 1!$1 ?C 1!, wherein it was held, that the word *access* used in
%ection 11" of the <vidence Act, connoted only the e2istence of an opportunity
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for marital intercourse, and in case such an opportunity was shown to have
e2isted durin the subsistence of a valid marriae, the provision by a fiction of
law, accepted the same as conclusive proof of the fact that the child born durin
the subsistence of the valid marriae, was a leitimate child. 5t was the
submission of the learned counsel for the appellant-wife, that the determination
of the ?rivy Council in @arapaya %ervai*s case)supra+ was approved by this
Court in Chilu,uri Aen,ateshwarly vs. Chilu,uri Aen,atanarayana, 1!(1 %CR
1"1. >earned counsel for the appellant-wife also invited our attention to a
decision rendered by this Court in Boutam @undu vs. %tate of Cest 9enal and
another, )1!!$+ $ %CC 11=, wherein this Court, inter alia, held as under/
7)1+ That Courts in 5ndia cannot order blood test as a matter of
course.
)"+ Cherever applications are made for such prayers in order to
have rovin in3uiry, the prayer for blood test cannot be entertained.
)$+ There must be a stron prima facie case in that the husband
must establish non-access in order to dispel the presumption arisin
under %ection 11" of the <vidence Act.
)1+ The Court must carefully e2amine as to what would be the
conse3uence of orderin the blood testD whether it will have the effect
of brandin a child as a bastard and the mother as an unchaste
woman.
)(+ 4o one can be compelled to ive samle of blood for analysis.6
Reliance was also placed on the decision rendered by this Court in @amti Devi
and another v. ?oshi Ram, A5R "##1 %C """8, wherefrom, the followin
observations made by this Court, were souht to be hihlihted/
71#. 9ut %ection 11" itself provides an outlet to the party who wants
to escape from the riour of that conclusiveness. The said outlet is, if it
can be shown that the parties had no access to each other at the time
when the child could have been beotten the presumption could be
rebutted. 5n other words, the party who wants to dislode the
conclusiveness has the burden to show a neative, not merely that he
did not have the opportunity to approach his wife but that she too did
not have the opportunity of approachin him durin the relevant time.
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4ormally, the rule of evidence in other instances is that the burden is
on the party who asserts the positive, but in this instance the burden is
cast on the party who pleads the neative. The raison d*etre is the
leislative concern aainst illeitimatiEin a child. 5t is a sublime public
policy that children should not suffer social disability on account of the
laches or lapses of parents.
11. Ce may remember that %ection 11" of the <vidence Act was
enacted at a time when the modern scientific advancements with Dio2y
4ucleric Acid )D4A+ as well as Ribonucleic Acid )R4A+ tests were not
even in contemplation of the leislature. The result of a enuine D4A
test is said to be scientifically accurate. 9ut even that is not enouh to
escape from the conclusiveness of %ection 11" of the Act, e.., if a
husband and wife were livin toether durin the time of conception
but the D4A test revealed that the child was not born to the husband,
the conclusiveness in law would remain unrebuttable. This may loo,
hard from thepoint of view of the husband who would be compelled to
bear the fatherhood of a child of which he may be innocent. 9ut even
in such a case the law leans in favour of the innocent child from bein
bastardiEed if his mother and her spouse were livin toether durin
the time of conception. &ence the 3uestion reardin the deree of
proof of non-access for rebuttin the conclusiveness must be
answered in the liht of what is meant by access or non-access as
delineated above.
1".....5ts corollary is that the burden of the plaintiff-husband should be
hiher than the standard of preponderance of probabilities. The
standard of proof in such cases must at least be of a deree in
between the two as to ensure that there was no possibility of the child
bein conceived throuh the plaintiff-husband. 7
)emphasis is ours+
>astly, learned counsel for the appellant-wife, placed reliance on the decision
rendered by this Court in %ham >al F @uldeep vs. %an:eev @umar and others,
)"##!+ 1" %CC 1(1, wherein it was inter alia, held as under/
7-nce the validity of marriae is proved then there is stron
presumption about the leitimacy of children born from that wedloc,.
The presumption can only be rebutted by a stron, clear, satisfyin and
conclusive evidence. The presumption cannot be displaced by mere
balance of probabilities or any circumstance creatin doubt. <ven the
evidence of adultery by wife which thouh amounts to very stron
evidence, it, by itself, is not 3uite sufficient to repel this presumption
and will not :ustify findin of illeitimacy if husband has had access. 5n
the instant case, admittedly the plaintiff and Defendant 1 were born to
D durin the continuance of her valid marriae with 9. Their marriae
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was in fact never dissolved. There is no evidence on record that 9 at
any point of time did not have access to D.6
)emphasis is ours+
5t was, therefore, the vehement contention of the learned counsel for the
appellant-wife, that the impuned order passed by the &ih Court directin,
holdin of a D4A test, of the respondent-husband and the male child born to the
appellant-wife, may be set aside.
!. All the :udments relied upon by the learned counsel for the appellant were
on the pointed sub:ect of the leitimacy of the child born durin the subsistence
of a valid marriae. The 3uestion that arises for consideration in the present
appeal, pertains to the alleed infidelity of the appellant-wife. 5t is not the
husband*s desire to prove the leitimacy or illeitimacy of the child born to the
appellant. The purpose of the respondent is, to establish the inredients of
%ection 1$)1+)ii+ of the &indu 'arriae Act, 1!((, namely, that after the
solemnisation of the marriae of the appellant with the respondent, the appellant
had voluntarily enaed in se2ual intercourse, with a person other than the
respondent. There can be no doubt, that the prayer made by the respondent for
conductin a D4A test of the appellant*s son as also of himself, was aimed at the
alleed adulterous behaviour of the appellant. 5n the determination of the issue
in hand, undoubtedly, the issue of leitimacy will also be incidentally involved.
Therefore, insofar as the present controversy is concerned, %ection 11" of the
5ndian <vidence Act would not strictly come into play. A similar issue came to be
ad:udicated upon by this Court in 9habani ?rasad Gena vs. Convenor %ecretary,
-rissa %tate Commission for Comen and another, )"#1#+ = %CC 8$$, wherein
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this Court held as under/
7"1. 5n a matter where paternity of a child is in issue before the
court, the use of D4A test is an e2tremely delicate and sensitive
aspect. -ne view is that when modern science ives the means of
ascertainin the paternity of a child, there should not be any hesitation
to use those means whenever the occasion re3uires. The other view is
that the court must be reluctant in the use of such scientific advances
and tools which result in invasion of riht to privacy of an individual and
may not only be pre:udicial to the rihts of the parties but may have
devastatin effect on the child. %ometimes the result of such scientific
test may bastardise an innocent child even thouh his mother and her
spouse were livin toether durin the time of conception.
"". 5n our view, when there is apparent conflict between the riht
to privacy of a person not to submit himself forcibly to medical
e2amination and duty of the court to reach the truth, the court must
e2ercise its discretion only after balancin the interests of the parties
and on due consideration whether for a :ust decision in the matter, D4A
test is eminently needed. D4A test in a matter relatin to paternity of a
child should not be directed by the court as a matter of course or in a
routine manner, whenever such a re3uest is made. The court has to
consider diverse aspects includin presumption under %ection 11" of
the <vidence ActD pros and cons of such order and the test of 7eminent
need6 whether it is not possible for the court to reach the truth without
use of such test.
"$. There is no conflict in the two decisions of this ourt, namely,
Boutam @undu vs. %tate of Cest 9enal )1!!$+ $ %CC 11= and
%harda vs. Dharmpal )"##$+ 1 %CC 1!$. 5n Boutam @undu, it has been
laid down that courts in 5ndia cannot order blood test as a matter of
course and such prayers cannot be ranted to have rovin in3uiryD
there must be stron prima facie case and the court must carefully
e2amine as to what would be the conse3uence of orderin the blood
test. 5n %harda, while concludin that a matrimonial court has power to
order a person to undero a medical test, it was reiterated that the
court should e2ercise such a power if the applicant has a stron prime
facie case and there is sufficient material before the court. -bviously,
therefore, any order for D4A test can be iven by the court only if a
stron prima facie case is made out for such a course.
"1. 5nsofar as the present case is concerned, we have already
held that the %tate Commission has no authority, competence or power
to order D4A test. >oo,in to the nature of proceedins with which the
&ih Court was concerned, it has to be held that the &ih Court
e2ceeded its :urisdiction in passin the impuned order. %tranely, the
&ih Court overloo,ed a very material aspect that the matrimonial
dispute between the parties is already pendin in the court of
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competent :urisdiction and all aspects concernin matrimonial dispute
raised by the parties in that case shall be ad:udicated and determined
by that court. %hould an issue arise before the matrimonial court
concernin the paternity of the child, obviously that court will be
competent to pass an appropriate order at the relevant time in
accordance with law. 5n any view of the matter, it is not possible to
sustain the order passed by the &ih Court. 7
)emphasis is ours+
5t is therefore apparent, that despite the conse3uences of a D4A test, this Court
has concluded, that it was permissible for a Court to permit the holdin of a D4A
test, if it was eminently needed, after balancin the interests of the parties.
Recently, the issue was aain considered by this Court in 4andlal Casudeo
9adwai, vs. >ata 4andlal 9adwai, and another, )"#11+ " %CC (08, wherein this
Court held as under/
71(. &ere, in the present case, the wife had pleaded that the
husband had access to her and, in fact, the child was born in the said
wedloc,, but the husband had specifically pleaded that after his wife
left the matrimonial home, she did not return and thereafter, he had no
access to her. The wife has admitted that she had left the matrimonial
home but aain :oined her husband. Hnfortunately, none of the courts
below have iven any findin with reard to this plea of the husband
that he had not any access to his wife at the time when the child could
have been beotten.
18. As stated earlier, the D4A test is an accurate test and on that
basis it is clear that the appellant is not the bioloical father of the irl
child. &owever, at the same time, the condition precedent for
invocation of %ection 11" of the <vidence Act has been established and
no findin with reard to the plea of the husband that he had no access
to his wife at the time when the child could have been beotten has
been recorded. Admittedly, the child has been born durin the
continuance of a valid marriae. Therefore, the provisions of %ection
11" of the <vidence Act conclusively prove that Respondent " is the
dauhter of the appellant. At the same time, the D4A test reports,
based on scientific analysis, in no uncertain terms suest that the
appellant is not the bioloical father. 5n such circumstances, which
would ive way to the other is a comple2 3uestion posed before us.
10. Ce may remember that %ection 11" of the <vidence Act was
enacted at a time when the modern scientific advancement and D4A
test were not even in contemplation of the leislature. The result of
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D4A test is said to be scientifically accurate. Althouh %ection 11"
raises a presumption of conclusive proof on satisfaction of the
conditions enumerated therein but the same is rebuttable. The
presumption may afford leitimate means of arrivin at an affirmative
leal conclusion. Chile the truth or fact is ,nown, in our opinion, there
is no need or room for any presumption. Chere there is evidence to
the contrary, the presumption is rebuttable and must yield to proof. The
interest of :ustice is best served by ascertainin the truth and the court
should be furnished with the best available science and may not be left
to ban, upon presumptions, unless science has no answer to the facts
in issue. 5n our opinion, when there is a conflict between a conclusive
proof envisaed under law and a proof based on scientific
advancement accepted by the world community to be correct, the latter
must prevail over the former.
1=. Ce must understand the distinction between a leal fiction and
the presumption of a fact. >eal fiction assumes e2istence of a fact
which may not really e2ist. &owever, a presumption of a fact depends
on satisfaction of certain circumstances. Those circumstances loically
would lead to the fact souht to be presumed. %ection 11" of the
<vidence Act does not create a leal fiction but provides for
presumption.
1!. The husband*s plea that he had no access to the wife when
the child was beotten stands proved by the D4A 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. Ce are
conscious that an innocent child may not be bastardised as the
marriae between her mother and father was subsistin at the time of
her birth, but in view of the D4A test reports and what we have
observed above, we cannot forestall the conse3uence. 5t is denyin
the truth. 7Truth must triumph6 is the hallmar, of :ustice.6
)emphasis is ours+
This Court has therefore clearly opined, that proof based on a D4A test would be
sufficient to dislode, a presumption under %ection 11" of the 5ndian <vidence
Act.
1#. 5t is borne from the decisions rendered by this Court in 9habani ?rasad
Gena )supra+, and 4andlal Casudeo 9adwai, )supra+, that dependin on the
facts and circumstances of the case, it would be permissible for a Court to direct
the holdin of a D4A e2amination, to determine the veracity of the alleation)s+,
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which constitute one of the rounds, on which the concerned party would either
succeed or lose. There can be no dispute, that if the direction to hold such a test
can be avoided, it should be so avoided. The reason, as already recorded in
various :udments by this Court, is that the leitimacy of a child should not be put
to peril.
11. The 3uestion that has to be answered in this case, is in respect of the
alleed infidelity of the appellant-wife. The respondent-husband has made clear
and cateorical assertions in the petition filed by him under %ection 1$ of the
&indu 'arriae Act, allein infidelity. &e has one to the e2tent of namin the
person, who was the father of the male child born to the appellant-wife. 5t is in
the process of substantiatin his alleation of infidelity, that the respondent-
husband had made an application before the .amily Court for conductin a D4A
test, which would establish whether or not, he had fathered the male child born to
the appellant-wife. The respondent feels that it is only possible for him to
substantiate the alleations levelled by him )of the appellant-wife*s infidelity+
throuh a D4A test. Ce aree with him. 5n our view, but for the D4A test, it
would be impossible for the respondent-husband to establish and confirm the
assertions made in the pleadins. Ce are therefore satisfied, that the direction
issued by the &ih Court, as has been e2tracted hereinabove, was fully :ustified.
D4A testin is the most leitimate and scientifically perfect means, which the
husband could use, to establish his assertion of infidelity. This should
simultaneously be ta,en as the most authentic, rihtful 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. 5f the
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appellant-wife is riht, she shall be proved to be so.
1". Ce would, however, while upholdin the order passed by the &ih Court,
consider it :ust and appropriate to record a caveat, ivin the appellant-wife
liberty to comply with or disreard the order passed by the &ih Court, re3uirin
the holdin of the D4A test. 5n case, she accepts the direction issued by the &ih
Court, the D4A test will determine conclusively the veracity of accusation levelled
by the respondent-husband, aainst her. 5n case, she declines to comply with the
direction issued by the &ih Court, the alleation would be determined by the
concerned Court, by drawin a presumption of the nature contemplated in
%ection 111 of the 5ndian <vidence Act, especially, in terms of illustration )h+
thereof. %ection 111 as also illustration )h+, referred to above, are bein
e2tracted hereunder/
7111. Court may presume e2istence of certain facts I The Court may
presume the e2istence of any fact which it thin,s li,ely to have
happened, reard bein 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.
5llustration )h+ - That if a man refuses to answer a 3uestion which
he is not compelled to answer by law, the answer, if iven, would be
unfavourable to him.6
This course has been adopted to preserve the riht of individual privacy to the
e2tent possible. -f course, without sacrificin the cause of :ustice. 9y adoptin
the above course, the issue of infidelity alone would be determined, without
e2pressly disturbin the presumption contemplated under %ection 11" of the
5ndian <vidence Act. <ven thouh, as already stated above, undoubtedly the
issue of leitimacy would also be incidentally involved.
1$. The instant appeal is disposed of in the above terms.
Page 15
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........................................G.
)Gadish %inh @hehar+
..........................................G.
)R.@. Arawal+
4ew DelhiD
-ctober 1(, "#11.