NANDLAL WASUDEO BADWAIK versus LATA NANDLAL BADWAIK & ANR.

Citation: [2014] 1 S.C.R. 120 · Decided: 06-01-2014 · Supreme Court of India · Bench: C.K. PRASAD · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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[2014] 1 S.C.R. 120 
NANDLAL WASUDEO BADWAIK 
V. 
LATA NANDLAL BADWAIK & ANR. 
(Criminal Appeal No. 24 of 2014) 
JANUARY 06, 2014 
[CHANDRAMAULI KR. PRASAD AND 
JAGDISH SINGH KHEHAR, JJ.] 
Code of Criminal Procedure, 1973.· 
s. 125 - Maintenance to wife and daughter - Appellant-
husband denying paternity of the child and challenging the 
order as regards maintenance to her - Two DNA test reports 
excluding him to be the biological father of the child - Held: 
0 Impugned judgment is set aside so far as it directs payment 
of maintenance to the child -
However, the payments 
already made shall not be recovered from the respondents. 
Evidence Act, 1872: 
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s. 112 - Birth during marriage, conclusive proof of 
legitimacy - Rebuttal by two DNA tests - Held: DNA test is 
scientifically accurate -When there is a conflict between a 
conclusive proof envisaged under law and a proof based on 
scientific advancement accepted by the world community to 
F be correct, the latter must prevail over the former -
Husband's plea that he had no access to the wife when child 
was begotten, stands proved by DNA test report and in the 
face of it, he cannot be compelled to bear the fatherhood of 
the child, when scientific reports prove to the contrary. 
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s. 112 - Birth during marriage - Presumption as regards 
legitimacy of child - Held: s. 112 does not create a legal fiction 
but provides for presumption -
Where there is evidence to 
the contrary, presumption is rebuttable and must yield to proof 
120 
NANDLAL WASUDEO BADWAIK v. LATA NANDLAL 121 
BADWAIK 
Medical Jurisprudence: 
DNA test - Nature and evidentiary value of - Explained. 
The instant appeal was filed by the husband 
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challenging the order of maintenance u/s 125 CrPC as 
regards the daughter and denying the paternity of the 
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child. His case was that his wife was residing separately 
and during the relevant period he had no access to her. 
He applied for referring the child for DNA test and its 
report excluded him from being the biological father of 
the child. Respondent no. 1-wife requested for re-test and 
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its report from a different institute also was to the same 
effect. It was contended for the respondents that the 
appellant having failed to establish that he had no access 
to his wife at any time when she could have begotten 
respondent no. 2, the direction for DNA test ought not to D 
have been given and, as such, the result of such a test 
was fit to be ignored. 
Allowing the appeal, the Court 
HELD: 1.1. This Court twice gave directions for DNA 
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test. The respondents did not oppose the prayer of DNA 
test when such a prayer was being considered. It was 
only after the reports of the DNA test had been received, 
which was adverse to the respondents, that they 
challenged it on the ground that such a test ought not to 
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have been directed. This Court, at this stage, cannot go 
into the validity of the orders passed by a coordinate 
Bench. It has attained finality. [para 10] [129-C-E] 
Goutam Kundu v. State of W.B., 1993 (3) SCR 917 = G 
(1993) 3 SCC 418; Banarsi Dass v. Teeku Dutta 2005 
(3) SCR 923 = (2005) 4 SCC 449; and Bhabani Prasad Jena 
v. Orissa State Commission for Women, 201 O (9) SCR 457 
= (2010) 8 sec 633 - held inapplicable. 
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122 
SUPREME COURT REPORTS 
[2014] 1 S.C.R. 
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1.2. It has been recognized by this Court in the case 
of Kamti Devi that the result of a genuine DNA test is 
scientifically accurate. It is nobody's case that the result 
of the DNA test is not genuine and, therefore, it has to be 
assumed that the result of the DNA test is accurate. The 
8 DNA test reports show that the appellant is not the 
biological father of the girl-child. [para 12] [131-C] 
Kamti Devi v. Poshi Ram 2001 (3) SCR 729 = (2001) 5 
sec 311- referred to. 
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1.3. From a plain reading of s.112 of the Evidence Act, 
1872, it is evident that a child born during the continuance 
of a valid marriage shall be a conclusive proof that the 
child is a legitimate child of the man to whom the lady 
giving birth is married. The provision makes the 
D legitimacy of the child to be a conclusive proof, if the 
conditions are satisfied. It can be denied only if it is 
shown that the parties to the marriage had no access to 
each other at any time when the child could have been 
begotten. [para 14) [131-G-H; 132-A] 
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1.4. The DNA test is an accurate test and on that 
basis it is clear that the appellant is not the biological 
father of the girl-child.

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