R. RAJENDRAN versus KAMAR NISHA AND OTHERS

Summary

The Supreme Court set aside a High Court direction compelling the appellant, accused of cheating a married woman who alleged he fathered her child, to give blood samples for DNA profiling, holding that the Section 112 Evidence Act presumption that the husband is the father stood unrebutted absent any plea or proof of non-access, that the test failed the eminent need, balance of interests and privacy requirements, and that paternity was only collateral to the offences alleged.

Issues

1. Whether the High Court was justified in directing the appellant to undergo DNA testing in the investigation of offences under Sections 417 and 420 IPC and Section 4(1) of the Tamil Nadu Women Harassment Act.
2. Whether the presumption of legitimacy under Section 112 of the Evidence Act had been displaced by proof of non-access.
3. Whether a compelled DNA test satisfied the requirements of eminent need, balance of interests and the right to privacy under Article 21.
4. Whether an adverse inference under Section 114 of the Evidence Act could be drawn from the appellant's refusal to undergo the test.
5. Whether Sections 53 and 53A CrPC justified the direction.

Provisions considered

• Section 112, Indian Evidence Act, 1872Birth during a valid marriage is conclusive proof of legitimacy unless non-access between the spouses at the time of conception is shown; non-access means impossibility of sexual relations, must be proved by strong, cogent evidence on a standard above preponderance of probabilities, and is not shown by simultaneous access or infidelity. (¶¶ 22, 23, 24, 25, 26, 33, 34, 35, 36, 37, 58)
• Section 4 (definition of conclusive proof), Indian Evidence Act, 1872Where a fact is declared conclusive proof of another, the court must treat the other as proved and not allow evidence to disprove it; the Court used this to explain the strength of the Section 112 presumption. (¶ 24)
• Section 114, illustrations (g) and (h), Indian Evidence Act, 1872No adverse inference arises from refusal to undergo a DNA test when the pre-conditions for ordering one are not met; the Section 112 presumption must first be rebutted. (¶¶ 19, 50)
• Sections 53 and 53A, Code of Criminal Procedure, 1973These allow medical examination including DNA profiling of an arrested accused only where it may directly furnish evidence of the offence; the High Court misapplied them since cheating and harassment have no proximate nexus with paternity. (¶¶ 55, 56, 57, 59)
• Articles 20(3) and 21, Constitution of IndiaA compelled DNA test intrudes on privacy and bodily autonomy and must satisfy legality, legitimate aim and proportionality; here there was no legitimate need and the intrusion on the appellant and the now-adult child was disproportionate. (¶¶ 45, 46, 47, 48, 54)

Held

• Section 112 raises a conclusive presumption that a child born during a valid marriage is the husband's legitimate child, rebuttable only by strong and unambiguous proof of non-access at the time of conception; the standard is higher than preponderance of probabilities though short of proof beyond reasonable doubt, and the burden lies on the person asserting illegitimacy. (¶¶ 23, 24, 33, 34)
• Non-access means impossibility, not mere lack of opportunity, of sexual relations between the spouses; lack of cohabitation, separate residence, extramarital relations or simultaneous access by a third party do not establish it. (¶¶ 25, 26, 36)
• Where the child was born during the mother's subsisting marriage, documents consistently named the husband as father, desertion was alleged only after the birth and was unsupported, and there was no specific pleading of non-access, the presumption remained unrebutted. (¶¶ 35, 36, 37)
• DNA testing cannot be ordered as a matter of course or for roving inquiries; there are two blockades, insufficiency of existing evidence and a positive finding on the balance of interests, together with the requirement of eminent need, and neither was satisfied here. (¶¶ 28, 38, 43, 44, 45, 49)
• Nandlal Wasudeo Badwaik concerned admissibility of a DNA report already obtained by consent, and Dipanwita Roy a test to prove adultery that left Section 112 undisturbed; neither supports ordering a test against an unwilling party to dislodge the presumption of legitimacy. (¶¶ 39, 40, 41, 42)
• One party's willingness to waive her own privacy cannot waive the independent privacy and dignity rights of the person to be tested or of the child, and a compelled test must meet the Puttaswamy requirements of legality, legitimate aim and proportionality, which it failed here. (¶¶ 46, 47, 48)
• An adverse inference under Section 114 from refusal to undergo a DNA test cannot be sought at the stage of deciding whether a test should be ordered at all; unless the Section 112 presumption is first rebutted, no occasion for such an inference arises. (¶ 50)
• A direction for DNA testing in a criminal investigation needs a direct and demonstrable nexus with the offence; where paternity is collateral to allegations of cheating and harassment, a compelled test is extraneous and disproportionate, and Sections 53 and 53A CrPC do not justify it. (¶¶ 53, 54, 56, 57, 59)
• The best interests, autonomy and emotional well-being of the child, a minor when the direction was issued, ought to have been a paramount consideration before ordering an intrusive forensic procedure. (¶ 51)

Result

Appeal allowed; the High Court's judgment dated 10.05.2017 in Writ Appeal (MD) No. 521 of 2017 directing the appellant to give blood samples for DNA profiling set aside.