“Case to Case Basis” is the grandest excuse of an ordinary Judge. In Ramkanya Bai v. Bharatram, (2010) 1 SCC 85 – Hon’ble Justice Tarun Chatterjee rejected the application for a DNA test to be performed on the child of the Appellant-Wife. One fact that validated that rejection was: the Respondent-Husband had made the paternity of the child a “prestige issue”, without any allegation that as a consequence of an illicit relationship with some third person, the child was born to the Appellant-Wife.
Recently, in Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365 (“Dipanwita”), the unusual question of a DNA test arose again from an usual petition filed under Section 13 of the Hindu Marriage Act, 1955. Ronobroto did not suffer under any inferiority complex. He contended pointedly that the Appellant-Wife led an adulterous lifestyle and gave birth to a child “as a result of her cohabitation with Shri Deven Shah”. The same was denied. In order to substantiate his claim, in respect of the infidelity of the Appellant-Wife and to establish that the son born to her was not his, Ronobroto moved an application seeking a DNA test of himself and the male child born to the Appellant-Wife. The Family Court dismissed the prayer while the High Court allowed it.
Before the SC, the Wife invited attention to Section 112 of the Indian Evidence Act, 1872 (“Act”).
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.
The Court held that the question that arises for consideration is the Wife’s fidelity. It is not the Husband’s desire to prove the legitimacy or the illegitimacy of the child born. Therefore, Section 112 “would not strictly come into play”.
“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. If the Appellant-Wife is right, she shall be proved to be so.”
A caveat was recorded, however, that the Wife was at liberty to comply with the order of the DNA test. In case she disregarded it, the concerned Court would determine the allegation of infidelity by drawing a presumption of the nature contemplated in Section 114 of the Act. By adopting the above course, it was felt, “the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112.. even though..undoubtedly the issue of legitimacy (of the child) would also be incidentally involved.”
Case facts in Ramkanya Bai and Dipanwita are evidently different. Bharatram pointed to no third wheel, the ‘woh’, while Ronobroto certainly did. The plea of “Case to Case Basis” might be a modest attempt to guard the moral high handedness of a Supreme Court Judge, but when Hon’ble Justice Khehar points aptly that the DNA test is the most “authentic, rightful and correct” mean for the Wife too – we know, that in between 2010 and 2015, the Judges have certainly have woken up to scientific means to ascertain a truth (even though, many of them, pardon, some of them, do not know what Euclid’s Theorem is).