LexSHRI BANARSI DASS versus MRS. TEEKU DUTTA AND ANR.
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;.- ' SHRI BANARSI DASS v. MRS. TEEKU DUTT A AND ANR. APRIL 27, 2005 [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] Indian Evidence Act, 1872-Section 112 : Direction for DNA test given in a proceeding for issuance of Succession Certificate-Propriety of-Held: The purpose of issuing Succession Certificate is to facilitate collection of dues and to protect debtors dealing with the alleged representatives of the deceased persons and not to establish the title A B c of the grantee-The scope of enquiry is very limited and the parties are required to prove their respective cases by such evidence produced during D trial rather than creating evidence by DNA test-Direction for DNA test may be given only in deserving cases and not as a matter of routine-Indian Succession Act, 1925-Section 372. Conclusive presumption under-The child born of a married woman is deemed to be legitimate and burden of proving illegitimacy is on the person E alleging it-Law in general presuming against vice and immorality and that every person is legitimate. DNA test-Conclusiveness of presumption under Section 112-Held: Cannot be rebutted by DNA test-Proof of non-access to each other is the F only way to rebut that presumption. Maxims-pater est quern nuptiae demonstrant-Meaning of Respondent no.I filed a petition for grant of Succession Certificate in respect of properties of the deceased claiming herself to be his daughter. Appellant filed objection alleging that ·respondent no. I was not the G daughter of the deceased and moved an application for DNA test to establish the paternity of respondent no.I. Trial court allowed the application. Respondent no.1 preferred revision. High Court held that such a direction could not be given as the scope of the enquiry was very limited 923 ff 924 SUPREME COURT REPORTS [2005] 3 S.C.R. A and the trial court being a testamentary court ought to have left the parties to prove their respective cases by such evidence produced during trial, rather than creating evidence by directing DNA test. Hence the present appeal. B Dismissing the appeal, the Court HELD : t. In matters of this kind Court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws whole burden of C proving so on the person who is interested in making out the illegitimacy. The law presumes both that a marriage ceremony is valid, arid that every person is legitimate. Marriage of filiation (parentage) may be presumed, the law in general presuming against vice and immorality. It is rebuttable presumption of law that a child born during the lawful wedlock is D legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. (928-A-CI Dukhtar Jahan (Smt.) v. Mohammed Farooq, (198711 SCC 624 and Amatjit Kaur v. Harbhajan Singh and Anr., (2003110 SCC 228, referred to E 2. Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness F of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception ut the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear ~he fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the G innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access. (928-H; 929-A-CI · H Kamti Devi (Smt.) and Anr. v. Poshi Ram, (200115SCC311, relied on - I - SHRI BANARSI DASS v. TEEKU DUTTA [PASA YAT, J.] 925 3. A Succession Certificate is intended to protect the debtors, which A means that
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