CASE ANALYSIS OF

BABITA DEVI V. STATE OF JHARKHAND

BY
PARVATHY SURESH
INTERN
2nd YEAR,
SYMBIOSIS LAW SCHOOL, PUNE
Mob- 9495364084
Gmail- 18010126136@symlaw.ac.in

www.probono-india.in
 BRIEF FACTS OF THE CASE

The marriage between Aditya Chourasia and Babita Devi (Petitioner) was solemnized on
February, 2000 in accordance with the Hindu rites and customs. But thereafter, the Aditya
Chourasia filed a suit under Section 11 of the Hindu Marriage Act which declared the
marriage as null. Against this order, the Petitioner filed an appeal before the Jharkhand High
Court on the grounds that after marriage, she had stayed at her matrimonial home and
enjoyed conjugal marital life with her husband, Aditya Chourasia. This consummation of
marriage resulted in the birth of their child, Sejal.
Thereafter, Petitioner with her daughter Sejal filed a petition claiming their maintenance
under Section 125 Code of Criminal Procedure. The husband negated this claim asserting that
at no point of time he established sexual relations with the Petitioner after their marriage
since he had no access to her and she did not allow him for consummation and therefore, the
Sejal was not his child. He further contended that the Petitioner was married to another
person, Sanjay Kumar Gupta, and the minor child was born from their wedlock. This was
strongly opposed by the Petitioner and she contended that Aditya was the father of her minor
daughter and for proving the same she filed a petition for DNA test of her female child, Sejal,
comparing her D.N.A with the D.N.A of Aditya so as to establish the latter's paternity. The
Principle Judge of the Family Court rejected the petition for DNA testing due to the reason
that the Petitioner in a different complaint had testified that after her marriage with Aditya,
she went to her matrimonial home where her first husband Sanjay Kumar Gupta came and
claimed her to be his wife and from there she was taken away by Sanjay Kumar Gupta to his
own house where he started living with her as husband and wife and that she conceived her
daughter from Sanjay Kumar Gupta. Though, this was subject to assertion that this test done
by the Petitioner was not voluntary and under duress by her husband. This assertion wasn’t
substantial due to the lack of clarity in the statements of the Petitioner. Further, the she
asserted that her daughter was born after completion of nine months of pregnancy on
14.3.2001, therefore her statement that she conceived in the month of August, 2000, could
not be relied upon and therefore, the Family Court held that from the statements of the
Petitioner it was established that Sejal was born from the first husband Sanjay Kumar Gupta
of the Petitioner Babita Devi and declined the petition for the DNA testing.
Aggrieved by the order of the Family Court, the instant Criminal Revision Petition was filed
by Petitioner against the order which the DNA testing of her daughter, Sejal, was rejected.
 FACT IN ISSUE

On the basis of the facts of the case and the pleadings of the party, the substantial question of
law that has been recognised by the Court is that when there is an apparent conflict between
the right to privacy of a person not to submit himself forcibly to medical examination and the
duty of the Court to reach the truth, in what consideration should there be a striking of
counterbalance between the two ends of the spectrum. The question arises on the power of
the High Court to issue direction for deoxyribonucleic acid test (DNA) of the child to
ascertain the paternity, specially when a matrimonial dispute is pending and the use of it is
extremely delicate and sensitive which could have an effect on the child in comparison to the
need to attain speedy justice to the parties. Thus the relevant question arising in the case is
whether there is a requirement for the Court to consider presumption under Section 112 of
Evidence Act1 and the test of ‘eminent need’ and whether it was possible for the court to
reach the truth without use of the test defeating an individual Right to privacy as guaranteed
under Article 212.

PRESUMPTION UNDER SECTION 112 OF INDIAN EVIDENCE ACT

Section 112 of the Indian Evidence Act provides that any person born during the continuance
of a valid marriage between his mother and any man, or within two hundred and eighty days
after dissolution, the mother remaining unmarried, shall be conclusive proof that he 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 he could have been begotten. The rule of evidence under
Section 112 is based on the recognised maxim of “pater est quem nuptiae demonstrant”,
meaning ‘the father is he who is married to the mother’. It encourages a child’s welfare so as
to ensure that a child born out of a wedlock be treated as the child of the man who was at the
time of the child’s conception, the husband of his/her mother.
The presumption is in the lines of public policy and morality. The legislative intent behind the
spirit of the Section is that once the validity of marriage is proved, then there is a prima facie
presumption about the legitimacy of the children born from that wedlock. This presumption
cannot be dispelled by mere balance of probabilities; rather it can only be done with clear and

1
Indian Evidence Act 1872, s 112.
2
Constitution of India 1950, art 21.
conclusive evidence or proof. The operation of the conclusive presumption can only be
avoided by proving non- access at the relevant time.

NON- ACCESS UNDER SECTION 112 OF THE INDIAN EVIDENCE ACT

In light of Section 112, and the intent behind of the provision, “access” does not mean actual
marital intercourse between the parties. An opportunity for this intercourse is enough. The
presumption as to legitimacy and paternity of the child is rebuttable by proof of non-access
throughout the period of possible conception. There is no requirement to prove the non-
access through direct and positive evidence. Since the presumption of legitimacy is favoured
by law, it can be proved through circumstantial evidence which is relevant to the issue in fact.
In Goutam Kundu v. State of West Bengal3, the Supreme Court held that unless it can be
shown that parties to the marriage had no access to each other at any time when the child
could have been begotten, there cannot be any roving enquiry by holding a blood group or
DNA test to ascertain the paternity.
Understanding the facts of the present matter, the marriage between the parties was
solemnized and thereafter the consummation of marriage resulted in the birth of their child,
Sejal after about 13 months. Since the testimonies of the parties clearly state that they both
had lived under a common roof for couple of day, providing for an opportunity for access and
4
consummation of the child, and clarifying the presumption under the provision. This
presumption can only be displaced by a strong preponderance of evidence, and not mere
balance of possibilities.

LEGITIMACY OF THE CHILD THROUGH DNA TESTING

In the case of Kanti Devi v. Poshi Ram5, it was ascertained that Section 112 of the Evidence
Act was enacted at a time when the modern scientific technology with DNA tests were not
even in the consideration of the Legislature. The result of such a test is said to be
scientifically accurate. Yet this not enough to escape from the conclusiveness of Section 112,
that is if the husband and wife were living together during any possible time of conception.

3
Gautam Kundu v. State of West Bengal, 1993 Cri LJ 3233.
4
Babita Devi v. State of Jharkhand, 2012 (1) DMC 108.
5
Kanti Devi v. Poshi Ram, (2001) 5 SCC 331.
The law leans in favour of the innocent child being left fatherless and the possibility of a
violation of the Right to privacy or personal liberty of the father.

JUDICIAL APPROACH IN THE CRITICAL ANALYSIS OF SECTION 112

The Kerala High Court, in the case of Vasu v. Santha6 emphasized on the importance of
granting a special protection to the law of legitimacy in India. There has to subjective
analyzing of the concept as, legitimacy of a child is highly sensitive issue in a country
wherein the bastardization of a child would have profound effect on the child’s well-being in
the society. Yet, there existed a prominent question as to whether the Court can direct the
party to submit himself to the DNA test. The Court in Goutam Kundu v. State of West
Bengal7, clarifies this point of law and held that the Courts in India cannot order blood test as
a matter of course, that is, whenever applications for the prayer to have roving inquiry, the
prayer of blood tests cannot be entertained. There must be strong prima facie case made out
in which the husband must establish non-access in order to displace the presumption under
Section112. The Court must examine as to what the consequences of the same would be and
thus cannot compel the party to undertake a DNA test. But this is not an authority for the
proposition that under no circumstance that the Court can direct that blood tests be
conducted. In the end, having regard to the future of the child, other jurisdiction has held such
directions should ordinarily be made if it in the interest of the child on a sounded note of
caution.
Since the trial court being a testamentary court, the parties should be left to prove their
respective cases on the basis of the evidence produced during trial, rather than creating
evidence by directing DNA tests.8 It is emphasized that DNA test is not to be directed as a
matter of routine and only in deserving cases such a direction can be given. 9 In a matter in
which the High Court has allowed the application for conducting a DNA test on the ground
that if the result of test was that the son was born out of the wedlock of the parties, there is a
mere possibility of reunion of the parents, the Supreme Court condemned this justification as
against public policy. 10

6
Vasu v. Santha, 1975 KLT 533.
7
Gautam Kundu v. State of West Bengal, 1993 Cri LJ 3233.
8
Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449.
9
Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, AIR 2010 SC 2851.
10
Ramkanya Bai v. Bharatram, (2010) 1 SCC 85.
Applying the concept of Statutory interpretation, to construe an ongoing Act, the interpreter
is to presume that the Parliament intended the Act to be applied at any future time in such a
way as to give effect to the original intention. 11 That is, to interpret the law, it must make
allowances for any relevant changes that have occurred such as social condition,
technological advancements etc. In Suresh Jindal v. BSES Rajdhani Power Limited 12, it
was held that creative interpretation of the provisions of the statute demands that with the
advance in science and technology, the Court should read the provisions of a statute in such a
manner so as to give effect. The Courts through the passage of time have begun to recognize
the requirement of giving more weightage to the conclusiveness guaranteed through means of
scientific advancements. In Narayan Dutt Tiwar v. Rohit Shekhar13, the court held that it
would not be wise to draw an adverse inference in case of a person refusing to comply with
the directions of the court. It is a mere presumption which in itself cannot be considered as a
piece of evidence but can be presented as a prima facie case for the parties in whose favour it
exists. In addition, Section 114 of the Evidence Act 14, enables the Court to draw an adverse
inference if the party does not produce the relevant evidence in his power and possession, and
thus if despite an order passed by the the Court, a person refuses to submit himself to such a
medical test or examination, a strong prima facie case to draw an adverse inference would be
made out.
Thus with the courts swaying both ways over the passage of time, the present stance of the
judiciary is that DNA test to ascertain the paternity and legitimacy of a child cannot be
ordered as a matter of course or routine manner. The court has to consider diverse aspects
including the presumption under Section 112, pros and cons of such a test and its
consequences and the test of ‘eminent need’ whether it is not possible for the Court without
the use of such a test. The Court must exercise its discretion only after balancing the interest
of the parties in due consideration. In the present matter the DNA test was eminently needed,
therefore the revision of the order was allowed to direct the opposing party to the test.

DNA TESTING AND RIGHT TO PRIVACY

The unanimous judgment in the case of Justice K.S Puttaswamy (Retd) v. Union of India15,
held that the Right to privacy has been recognised under Right to life and liberty guaranteed
11
Francis Bennion, Statutory Interpretation, (2nd edn, Butterworths Law 2002)
12
Suresh Jindal v. BSES Rajdhani Power Limited, 126 (2006) DLT 49.
13
Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554.
14
Indian Evidence Act 1872, s 114.
15
Justice K.S Puttaswamy (Retd) v. Union of India, (2017) 10 SCC 1.
by Article 21 of the Constitution. The introduction of DNA technology is perceived to pose
serious challenges to legal and fundamental rights of an individual. In the Sharda v.
Dharampal16, when the question arose whether subjecting a person to a medical test is in
violation of Article 21, the Court held that the right to privacy in terms of Article 21 is not an
absolute right and is subject to restrictions on the basis of compelling public interest. The
Courts have the power to order a person to undergo medical test and such passing of an order
would not be in violation of Right to personal liberty under Article 21.
In a matter where paternity of a child is in issue before the court, the use of DNA is an
extremely delicate and sensitive aspect which has been hotly debated with two views. One
view is that modern technology and science gives us a recourse in ascertaining the paternity
and legitimacy of the child and therefore, this means should be accepted and applied
whenever required without hesitation. The other view revolves around idea that such usage
of scientific technologies would result in invasion of right to privacy of an individual and
may not be in the best interest of the parties to the dispute as well as prejudicial to the child.
Therefore, whenever there is an apparent conflict between the right to privacy of a person not
to submit himself forcibly to medical examination and duty of the court to reach the truth, the
court must exercise its discretion only after balancing the interests of the parties and on due
consideration whether for a just decision in the matter. The matter of Right to privacy of the
party contending that undergoing the test would be degrading and humiliating was negated by
the Apex Court, establishing the procedure of DNA testing to ensure utmost caution of
protecting the confidentiality of the party.17
From the above mentioned judgments and approaches of the Courts, it is evident that there
exists an apparent conflict between Right to privacy and Right to Information. Yet, the Courts
have leaned towards the conservative or traditionalist view to use its discretionary power to
order a person to undergo medical tests after careful scrutiny and consideration of facts and
circumstances, and such an order would not be in violation Article 21. Thus for arriving at the
satisfaction of the Court and to protect the rights of a party who might be incapable of
protecting his own interest, such an order passed by the Court would not be in violation of
Article 21 as, if the respondent avoids the same on the ground that it violates his right to
privacy, then it may in most cases be nearly impossible to arrive at a conclusion regarding the
paternity and legitimacy of the child.

16
Sharda v. Dharampal, (2003) 4 SCC 493.
17
Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554.
 INTERNATIONAL CONVENTIONS AND DEVELOPMENTS IN OTHER JURISDICTIONS

The right of the child to know of his or her biological parents is now recognized as an
internationally accepted right. The UN Declaration on Human Rights have recognized the
rights of a child irrespective of her legitimacy and the specific right of knowledge of
parenthood had been expressly recognised by the Convention on the Rights of Child, 1990.
The Convention requires that the States must enable the means for a child to know his true
parentage.
There have been progressive developments in the United Kingdom and United States where
this right has had a crucial influence on decisions to permit the conduct of reliable scientific
tests on the mother, the child and the party alleged to be the father in order to determine the
paternity of the child. This development has also brought about a revolutionized change in
lifting the anonymity of a donor in cases of assisted pregnancies and sperm donors, thus
giving the child the right to know his or her true parentage. Similarly, under the Human
Fertilization and Embryology Authority Regulations 2004, the children in United Kingdom
have the right to obtain information about their donors after they reach the age of 18 and the
Family Reforms Act, 1987 allows conduct of tests to determine who could be the biological
father of the child.
The Apex Court has used this rule of harmonious interpretation to harmonize India’s
domestic laws with its international obligations in matter duly regarding human rights and its
violation.
Thus the object of DNA test to determine the legitimacy of the child is in consonance with
the object of the international conventions protecting human rights. Even other legislations
recognize the use of DNA testing in purpose of different legislations especially in criminal
law. Canada enacted the DNA Identification Act, 2000 which allows a DNA data bank to be
created and amended to provide for a mechanism in which persons of convicted of designated
offences to provide blood, buckle or hair samples from which DNA profiles will be derived.
Similarly, in New Zealand, the Criminal Investigation (Bodily Sample) Act DNA samples
from persons convicted of certain offenses, volunteers, and suspects are included in a national
databank.

OVERVIEW OF THE JUDGMENT

The judgment delivered by the High Court of Jharkhand fell in lines with the ratio laid down
in the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for
Women18 regarding the discretionary power of the court to order DNA testing in order to
ascertain the legitimacy and paternity of the child. The Court after thorough examination of
the facts and circumstances, allowed the Revision of the order of the Family Court, Dhanbad
which had initially rejected the petition for DNA testing. The judgment is in the lines of the
rule of presumed legitimacy under Section 112 of the Indian Evidence Act, and establishing
whether there exists an eminent need for the test for the court to ascertain the truth. This is
due to the tussle between the need to protect the interest of the child while ensuring that the
Right to privacy of an individual is not violated through forceful medical examination. Thus
in the end, the question comes to whether the presumption of legitimacy under Section 112
can be dispelled. Section 112 is based the concepts of morality, decency and public policy.
This conclusive presumption can only be negated by proving non- access of the parties. This
non- access cannot be just on mere balance of probabilities, rather there is a need for strong
preponderance. In this matter, the opposing party’s claim is purely rested on the allegation
that, during the course of marriage, he had no access to the Petitioner and at no point has he
established sexual relationship with her to result in the consummation of the child.
Furthermore, he also alleged that his wife was taken away by her first husband to his
matrimonial house where they resided together as husband and wife and consummated the
child. The family court on mere probabilities accepted these allegations to reject the petition
of the Petitioner for maintenance for herself and the child under Section 125 of CrPC. But on
understanding of the law itself, these allegations fail to uphold as the testimonies of the party
clearly negated the same. Under Section 112 of the Evidence Act, the term ‘access’ is not be
construed strictly as per the provision. It does not mean actual physical presence for sexual
intercourse; rather it only requires an opportunity for intercourse. As per the facts, after the
marriage between the Petitioner and the opposing party, they lived under the same roof for
some days providing for an ample time of opportunity to establish sexual relations. Yet, there
still existed a hinge of doubt regarding the presumption of legitimacy as the time span of the
petitioner cohabiting with the opposing party as well as the first husband was very small.
Thus, the Court has the discretionary power to keep aside the presumption under Section 112,
to order for DNA testing to establish the accurate legitimacy of the child. But the recourse
can only be undertaken as a judicious and contemplated solution after taking into
consideration diverse aspects including the consequences, the need for the test, and the
interest of the parties. Though Article 21 in regards to right to privacy is not an absolute right,
18
Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, AIR 2010 SC 2851.
subjecting a party to forced medical examination without taking into account the interest of
the party will deface the object of the provision itself.
Since law is considered to be dynamic concept, there is need for it to change and develop
from time to time according to the need of the society without jeopardizing its basic principle
and objectives. The Courts have authoritatively pronounced the usage of DNA testing as
recourse with one side in favour of it to ascertain the true facts especially in legitimacy cases
and the other side negating the same due to the violation of Right to Privacy of a person being
forced against the will to undergo medical examination, with the uncertainties in legislation,
there opens up a wide range of ambiguities. There arises a need to have a rigid law laying
down guidelines in regards to using of DNA testing and dealing with its conclusiveness. The
Indian Evidence (Amendment) Act, 2003 recommended for an amendment of Section 112 of
the Evidence Act as per the recommendations of the 185 th Law Commission Report.19 The
amended section would recognise the presumption of legitimacy of the child born during the
continuance of the marriage, as well as the the dispelling this presumption by conducting a
DNA test with the permission of the court to establish that he is not the father. The amended
section would provide for the proper procedure and guidelines to reduce any ambiguity or
lack of clarity in the provision as well give statutory acceptance to scientific modern
technologies like DNA testing.
Although this case deals with what could seem like a primary question of law, it is essential
to note that such questions have massive repercussion, as the law is the public conscience that
requires constant attention and developments as the society changes through the passage of
time.

REFERENCES

 Gautam Kundu v. State of West Bengal, 1993 Cri LJ 3233.

 Babita Devi v. State of Jharkhand, 2012 (1) DMC 108.
 Kanti Devi v. Poshi Ram, (2001) 5 SCC 331.
 Vasu v. Santha, 1975 KLT 533.
 Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449.
 Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women,
AIR 2010 SC 2851.

19
Law Commission, Review of the Indian Evidence Act, 1872 (Report No. 185, 2003)
  Ramkanya Bai v. Bharatram, (2010) 1 SCC 85.
 Suresh Jindal v. BSES Rajdhani Power Limited, 126 (2006) DLT 49.
 Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554
 Justice K.S Puttaswamy (Retd) v. Union of India, (2017) 10 SCC 1.
 Sharda v. Dharampal, (2003) 4 SCC 493.
 Nandal Wasudeo Badwaik v. Lata Nandal Badwaik, AIR 2014 SC 576.
 Francis Bennion, Statutory Interpretation, (2nd edn, Butterworths Law 2002).
 Law Commission, Review of the Indian Evidence Act, 1872 (Report No. 185, 2003)
 Alex Samuel and Dr. Swati Parikh, DNA Tests in Criminal Investigation and
Paternity Disputes, (2nd edn, Dwivedi and Company 2014)
 Roy, Caesar. “Presumption as to Legitimacy in Section 112 of Indian Evidence Act
Needs to be Amended.” Journal of the Indian Law Institute, vol. 54, no. 3, 2012, pp.
382–399. JSTOR, www.jstor.org/stable/44782478. Accessed 15 May 2020.
 Indian Evidence Act 1872, s 112.
 Indian Evidence Act 1872, s 114.
 Code of Criminal Procedure 1973, s 125
 Constitution of India 1950, art 21.

ABOUT THE AUTHOR

Parvathy Suresh is pursuing BBA LLB (Hons.) from Symbiosis Law School, Pune. She has
keen interest in the field of arbitration, maritime law, public policy and legal writing. In
perusal of her degree, she has participated and won several moot court competitions,
published articles in various legal platforms and interned with reputed law firms. She also is
an Executive Member of the Student Bar Association and a member of the Corporate Cell of
Symbiosis Law School Pune.