GOUTAM KUNDU versus STTE OF WEST BENGAL AND ANR.

Citation: [1993] 3 S.C.R. 917 · Decided: 14-05-1993 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Dismissed
Cited by 3 judgment(s) · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

-
• 
GOUT AM KUNDU 
v. 
ST A TE OF WEST BENGAL AND ANR. 
MAY 14, 1993 
[A.M. AHMADI ANDS. MOHAN, JJ.] 
Code of Criminal Proced11re, 1973: 
S. 125-Maintenance-Granted to wife and child-Paternity of 
child-Disp11ted-H11sband's application for blood group test of wife and 
child-Held, p11rpose of application to avoid paymem of maimenance-Prayer 
rightly ref11sed by co11rts below. 
Evidence Act, 1872 : 
A 
B 
c 
Ss. 
4, 
J 12-Child 
born 
d11ring 
conti1111ance 
of valid 
D 
mari"iage-Paternity-Presumption-Held, presumption can only be displaced 
by strong preponderance of evidence and not by mere balance o.f probabilities. 
Blood group test-Evidemion value of-When can be ordered- Courts 
must examine conseq11ence o.f ordering blood group test. 
Respondent no. 2 was married to the appellant. She went to reside with 
her parent., in order to prepare for Higher Secondary Examination. In the 
meantime.she conceh·ed. The appellant and his family members asked her to 
undergo abortion but she refused, and a child was born to her. 
In a petition under s.125, Cr. P.C. filed b)' respondent no. 2, against her 
husband, the wife and the child were granted maintenance. 
E 
F 
The appellant, disputing the paternit~· of the child, filed a criminal 
miscellaneous application for blood group test of respondent no. 2 and the 
child. It was claimed that ifit was estahlished that he was not father of the child 
G 
he would not be liable to pay tbe maintenance. The application was dismissed. 
A1>1>ellant's re\'ision application was also rejected b~· the High Court. The 
appellant filed the appeal by special lea\•e. 
Dismissing the appeal, this Com·t 
917 
A 
918 
SUPREME coL;RT REPORTS / 
[1993) ~ S.C.R. 
_,.../ 
HELD: 1.1 Courts is India cannot order blood group test as a matter of 
course. Unlike the English law* in India there is no special statute governing 
this. Neither the Criminal Procedure Code nor the Evidence Act empowers 
the court-. to direct such a test, 
*Affiliation Proceedings Act, 1957; Family Reforms Act, 1969; Family 
B 
Reforms Act, 1987. 
c 
1.2 Wherever applications are made for blood group test in order to 
have roving inquiry, the prayer cannot be entertained. 
Bhartirajv. Sumesh Sachdeo& Ors: 1986AIRAllahabad 259,approved. 
2.1Section112 read with s.4 of the Evidence Act debars e\·idence except 
in cases of' non-access for disproving the presumption of legitimacy and 
paternity. It is a rebuttable presumption of law that a child born during the 
lawful wedlock is legitimate, and that access occurred between the parties. 
This presum1>tion can only be displaced b~: a strong preponderance of' 
D 
evidence and not by a mere balance of probabilities. 
2.2 There must be a strong prima facie case in that the husband must · 
establish non-access in orde1· to dispel the presumption arising under s. 112 
of the E,•idence Act. 
E 
Va~rn,·. Sa111fw: [_1975] Kerala LawTimes533andRaghwzatlz v.Shardabai, 
[1986] AIR Bombay 388, referred to. 
Morris v. Davies: [1837] 5 Cl. & Fin. 163, cited. 
3 The Court must careful!~· examine as to what would he the conse-
F 
quence of ordering the blood test; whether it will have the effect of branding 
a child as a bastard and the mother as an unchaste woman. 
Smt. Dikluar Jahan v. Mohammed Faroog, AIR 1987SC1049, referred to. 
4.1 Blood group test is a useful test to determine the question of disputed 
G 
pa.ternit~·· It can be 1·elied upon by courts as a circumstantial evidence which 
ultimatcl~· excludes a certain individual as a father of the child. 
4.2 No person can be compelled to gh·e sample of blood for analysis and 
no ad,•erse inference can be drawn against a person on account of such 
H 
·ef'usal. 
• 
--
• 
-... 
GOUTAM KUNDU ,., STATEOFW. B. 
919 
Hargovind Soni v. Ramdulari, AIR [1986] M.P. 57, approved. 
Varn v. Santha, [1975] Kerala Law Times 533, Polavarap11 Venkeeswarlu 
v. Polavarapu S11bbayya, [1951] 1 Madras Law Journal 58, referred to. 
Subayya Gounder v. Bhoopa/.a, AIR [1959] Madras 396; Venkateswar/11 v. 
A 
S11bban•a, AIR [1951] Madras 910; Hukwn Chand Boid v. Kama/an-and Singh, 
B 
(1905) ILR. 33 Cal. 927, cited. 
Wilson, .. Wilson, lancet [1942] I. 570; Re L. 1968 [I] All England Reports 
20; B.R.B v. J.B., [1968] 2 All Eng. Reports 1023, refered to 
Tauylor 's 'Principles and Practice of Medical Jurisprudence (Vol. 2); 
C 
'Medical Jurisprudence and Tolfr;ology· (8th Edition) by Rai Bahadur Jaising 
P. Mod, cited. 
'Forensic Sciences' edited by Cyril H. Wecht, ref
Excerpt shown. Read the full judgment & AI analysis in Lexace.