Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr.
CODE OF CRIMINAL PROCEDURE, 1973:
(1) 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 biological father of the child –
Held: Impugned judgment is set aside so far as it directs payment of maintenance to the child – However, payments already made shall not be recovered.
Procedure adopted for testing
Accordingly, we direct that a further DNA Test be conducted at the Central Forensic Laboratory, Ministry of Home Affairs, Government of India at Hyderabad and for the said purpose the parties are directed to appear before the Laboratory on 24th August, 2011 at 11.00 a.m.”
We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.
The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.
Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr.[6 January, 2014]