TUSHAR ROY Vs. SUKLA ROY

JUDGEMENT

(1.) The question that falls for consideration is whether blood group test is permissible in law for determining the paternity of a child born during the wedlock of the husband and the wife. The question has arisen in a proceeding under S. 125, Cr. P.C. for maintenance claimed against the husband by the wife for herself and the minor daughter born during the wedlock. The husband doubts the fidelity of the wife and he wants blood-group test of the child for ascertaining whether he or any body else is the father of the child. The learned Magistrate refused the prayer of the husband for blood group test. Against such refusal the petitioner/husband has come up in this Court.

(2.) Mr. Sukumar Guha, the learned Advocate for the petitioner argued that blood group test should be allowed for determining the paternity of the child, In a recent decision in Criminal Revision No. 800/92 (Gautam Kundu v. Shaswati Kundu), where a similar question arose, I have held in my judgment dated the 22/04/1992 that in view of the provision of S. 112 of the Evidence Act there is no scope of permitting the husband to avail of blood test for dislodging the presumption of legitimacy and paternity arising of S. 112 of the Evidence Act, where the husband had admittedly access to and sexual intercourse too with the wife at the relevant time. The fact that a child was born during the continuance of a valid marriage between a woman and her husband is a conclusive proof that the said child is the legitimate child of that man 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. Mr. Guha argued - and I must say, it is a very novel argument - that under S. 112 the husband is entitled to show that at the relevant time he had no access to the wife and this he can successfully show by blood test evidence if such test establishes that the husband is not the biological father of the child, for in that case blood test evidence becomes an evidence of the husband's non-access to the wife at the relevant time, namely, the time precisely when the conception took place by dint of sexual act of someone else. There is no doubt that when S. 112 of the Evidence Act was drafted and enacted there was no possibility of determining the paternity of a child by blood test evidence because science was not at that stage as it is now. But then a deeper study would reveal that S. 112 was couched in a carefully warded language and was enacted for a purpose which is much wider than the purpose of filling up the gap of any possible uncertainty about the paternity of a child where a doubt on the point is raised by any suspicious mind. The conclusive presumption under S. 112 is rather based on a sound police of affording protection to the sanctity and stability of family relationship so that for every trifling suspicion or for oblique purpose the question of legitimacy of a child born or conceived in the wedlock does not become a handy target of scandalisation and indecent investigation. It may be noticed that S. 112 does not draw the comparatively weaker presumption falling within the ambit of the expression 'shall presume' as defined in S. 4 of the Evidence Act. In S. 4, it is stated that whenever it is directed that the Court shall presume a fact it shall regard such fact as proved unless and until it is disproved. S. 112 could very well have been so drafted as to provide that where a person was born during the continuance of a valid marriage between his mother and any man the Court shall presume that he is the legitimate son of that man. In that case in view of the definition of the expression 'shall presume' as given in S. 4 it would have been open to the contending party to disprove the presumption by adducing evidence in disproof of the presumed fact, as for example, by blood test. Had it been a matter falling within the ambit of 'shall presume' the contending party would have been at liberty to rebut the presumption by evidence, whatever may be the nature of the evidence provided it is admissible. Instead, S. 112 employs the language of a stronger presumption, the language of 'conclusive proof' leaving only a very narrow and defined margin about the manner in which that conclusive presumption of law can be dislodged.

(3.) Here we may profitably study the text of S. 112 of the Evidence Act which runs thus :-