Kundu Vs. State of West Bengal & Anr  INSC 290 (14 May 1993)
S. (J) Mohan, S. (J) Ahmadi, A.M. (J)
1993 AIR 2295 1993 SCR (3) 917 1993 SCC (3) 418 JT 1993 (2) 443 1993 SCALE
of Criminal Procedure, 1973 :
125-Maintenance-Granted to wife and child-Paternity of child-Disputed-Husband's
application for blood group test of wife and child-Held, purpose of application
to avoid payment of maintenance--Prayer rightly refused by courts below.
Act, 1872 Ss. 4, 112-Child born during continuance of valid marriage-
Paternity-Presumption-Held, presumption can only be displaced by strong,
preponderance of evidence and not by mere balance of probabilities.
group test-Evidention value of-When can be ordered- courts must examine
consequence of ordering blood group test.
no. 2 was married to the appellant. She went to reside with her parents in
order to prepare for Higher Secondary Examination. In the meantime she
conceived. The appellant and his family members asked her to undergo abortion
but she refused, and a child was born to her.
petition under s. 125, Cr. P.C. riled by respondent no. 2, against her husband,
the wife and the child were granted maintenance.
appellant, disputing the paternity of the child, riled a criminal miscellaneous
application for blood group test (if respondent no. 2 and the child. It was
claimed that if it was established that he was not father of the child he would
not be liable to pay the maintenance. The application was dismissed.
Appellant's revision application was also rejected by the High Court. The
appellant filed the appeal by special leave.
the appeal, this Court 918
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 Reforms Act, 1987.
Wherever applications are made for blood group test in order to have roving
inquiry, the prayer cannot be entertained.
v. Sumesh Sachdeo & Ors: 1986 AIR Allahabad 259, approved.
Section 112 read with s.4 of the Evidence Act debars evidence except in cases
of non-access for disproving the presumption of legitimacy and paternity. It is
a rebuttable presumption of lam, that a child born during the lawful wedlock is
legitimate, and that access occurred between the parties. This presumption can
only be displaced by a strong preponderance of evidence and not by a mere
balance of probabilities.
There must be a strong prima facie case in that the husband must establish
non-access in order to dispel the presumption arising under s. 112 of the
v. Santha:  Kerala Law Times 533 and Raghunath v. Shardabai,  AIR Bombay 388, referred to.
v. Davies 1837 5 Cl. & Fin. 163. cited.
Court must carefully examine as to what would be the consequence 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.
Jahan v. Mohammed Faroog. AIR 1987 SC 1049, referred to.
Blood group test is a useful test to determine the question of disputed
paternity. It can be relied upon by courts as a circumstantial evidence which
ultimately excludes a certain individual as a father of the child.
person can be compelled to give sample of blood for analysis and no adverse inference
can he drawn against a person on account of such refusal.
Soni v. Ramdulari, AIR  M.P. 57, approved.
v. Santha,  Kerala Law Times 533, Polavarapu Venkeeswarlu v. Polavarapu Subbayya,
 1 Madras Law Journal 58, referred to.
Gounder v. Bhoopala, AIR  Madras 396; Venkateswarlu v. Subbayya, AIR  Madras 910; Hukum Chand Boid v. Kamalan-and
Singh, (1905) ILR. 33 Cal. 927, cited.
Wilson v. Wilson, Lancet  1.570; Re L 1968  All England Reports 20; B. R. B. v. J. B.,
 2 All Eng.
1023, referred to Tauylor's 'Principles and Practice of Medical Jurisprudence
(Vol. 2); 'Medical Jurisprudence and Toxicology (8th Edition) by Rai Bahadur Jaising
P. Mod, cited.
Sciences' edited by Cyril H. Wecht, referred to.
the instant case the purpose of the application for blood group test was
nothing more than to avoid payment of maintenance, without making any ground
whatever to have recourse to the test. The High Court was right in confirming
the order of the court below rejecting the application.
APPELLATE JURISDICTION: Criminal Appeal No. 443 of 1993.
the Judgment and Order dated 22.4.92 of the Calcutta High Court in Crl.
Revision No. 800/92.
S.C. Ghosh, Rajiv K. Dutta and B.B. Tawakley for the Appellant.
and Ranjan Mukherjee for the Respondents.
Judgment of the Court was delivered by MOHAN, J. leave granted.
appellant herein was, married to second respondent on 16th January, 1990 according to Hindu Rites and
lived together for sometime until second respondent left the matrimonial home
to reside with her parents in order to prepare for Higher Secondary Examination
which commenced on 5.4.90 920 and continued upto 10.5.90. In the month of
April, 1990 she conceived, on coming to know that she was pregnant, the
appellant and the family members did not want her to beget a child. Therefore
she was forced to undergo abortion which was refused by the second respondent.
During the stay She was meted out cruetreatment both physically and mentally.
came back to the matrimonial home during Durga Pooja in the month of October,
1990. A female child was born on 3.1.91. She filed a petition under section 125
Cr. P.C. before the Learned Chief Judicial Magistrate, Alipore in Misc. Case
No. 143 of 1991 both for herself and the child.
order dated 14.8.91 which was passed ex-parte he awarded a sum of Rs. 300 per mansum
to the mother and Rs. 200 to the child. Against that order, he moved a revision
to the High Court. That revision is pending as 1837 of 199 1. Thereafter the
petitioner filed a Crl. Misc. Case No. 143 of 1991 for blood group test of the
second respondent and the child.
that proceeding the petitioner herein disputed the paternity of the child and
prayed for blood group test of the child to prove that he was not the father of
to him if that could be established he would not be liable to pay maintenance.
That application was dismissed on two grounds: (i) there were other methods in
the Evidence Act to disprove the paternity (ii) moreover it is settled law that
medical test cannot be conclusive of paternity.
by this order, a revision was preferred before the High Court. Dismissing the
revision it was held that section 112 of the Evidence Act says where during the
continuance of valid marriage if a child is born that is a conclusive proof
about the legitimacy. This section would constitute a stumbling block in the way
of the petitioner getting his paternity disproved by blood group test.
English law permitting blood test for determining the paternity of legitimacy
could not be applied in view of section 112 of the Evidence Act. Therefore it
must be concluded that section 112 read with section 4 of the said Act debars
evidence except in cases of non-access for disproving the presumption of
legitimacy and paternity.
the contention of Mr. Ashok Sen, learned counsel for the appellant that the
only way for the father to disprove the paternity is by blood group test.
Having regard to the development of medical jurisprudence to deny that request
to the appellant will be unreasonable. As a matter of fact, in England, this is commonly resorted to as it
will leave no room for doubt. In 1968 (1) All England Reports p. 20 Re. 1 it was held that even without the
consent of the guardian ad litem, the court had power to order an infant be
subjected to a blood group test.
There is no justification for the court below to refuse the same on the ground
that section 112 of the Evidence Act would be an obstacle in seeking relief of
blood group test.
we deal with the arguments, we will examine the law as available in England. At the beginning of the century
scientists established that human blood had certain characteristics which could
be genetically transmitted. The first recognised system was ABO blood group.
The blood group of a child is determined by the parents' genetic make- up but
the number of possibilities is such, that it is not possible to prove that
certain individuals are the father on the basis of comparing blood groups,
only, that they are not the father.
1930s other immunological test became available. As a result the possibility of
establishing paternity increased.
attempt by way of statutory provision to make blood test compulsory in En-land
failed in 1938. However, in 1957 the Affiliation Proceedings Act was passed.
Under that Act, it was assumed that a man was the father once a sexual
relationship with the mother at the time of conception was proven unless he
could show another man had intercourse with her at that time. Failing the
father's attempt, the mother's evidence had to be corroborated by facts such as
blood test etc.
the Act either party could ask for a blood test and either was entitled to
refuse to take part, although only the mother can apply for maintenance.
Family Reforms Act, 1969 conferred powers on the court to direct taking blood
test in civil proceedings in paternity cases. Courts were able to give
directions for the use of the blood test and taking blood samples from the
child, the mother and any person alleged to be the father.
the passing of 1969 Act the general practice has been to use blood tests when
paternity is in issue. However, it is to be stated the court cannot order a
person to submit to tests but can draw adverse inferences from a refusal to do
so. Now under the Fan-lily Reforms Act, 1987 in keeping with modern thinking on
the continuing and shared responsibility of parenthood, 'parentage' rather than
paternity has to be determined before the court. Fathers as well as mothers can
apply for maintenance. Therefore contests can include mothers denial of
paternity. This Act finally removed the legal aid for corroboration of mother's
statement of paternity.
cases may be usefully referred to: Re L Lord Denning M.R.  All England
Reports p. 20 stated thus 922 "but they can say positively that a given
man cannot be the father, because the blood groups of his and the child are so
different." (emphasis supplied).
B.R.B. v. J.B.  2 All England Reports 1023 applied this dictum and held
as under:- "The Country court judge will refer it to a High Court Judge as
a matter suitable for ancillary relief, and the High Court Judge can order the
blood test. Likewise, of course, a magistrate's court has no power to order a
blood test against the will of the parties.
magistrate can only do it by consent of those concerned, namely, the grown-ups
and the mother on behalf of the child; but, nevertheless, if any of them does
not consent, the magistrate can take that refusal into account1 adhere to the
view which expressed in Re L. that (6) "If an adult unreasonably refuses
to have a blood test, or to allow a child to have one, I think that it is open
to the court in any civil proceedings (no matter whether it be a paternity
issue or an affiliation summons,or a custody proceedings) to take his refusalas
evidence against him, and may draw an inference there from adverse to him. This
is simple common sense." "The conclusion of the whole matter is that
a judge of the High Court has power to order a blood test whenever it is in the
best interests of the child. The judges can be trusted to exercise this
discretion wisely. I would set no limit, condition or bounds to the way in
which judges exercise their discretion.
object of the court always is to find out the truth. When scientific advances
give us fresh means of ascertaining it, we should not hesitate to use those
means whenever the occasion requires." "Having heard full argument on
the case, lam satisfied beyond any reasonable doubt (to use the expression used
in rebutting the presumption as to legitimacy) that LORD DENNING, M.R., was
right in saying that such an order may be made in any case where the child is
made a party to the proceedings and in the opinion of the judge of the High
Court it is in the child's best interests that it should be made." 923 As
regard United States the law as stated in Forensic
Sciences edited by Cyril H. Wecht is as under:- Parentage testing is the major
(but not the exclusive) involvement of forensic serology in civil cases. The
majority of disputed parentage cases involve disputed paternity, although an
occasional disputed maternity, or baby mix-up case does arise, and can be
solved using the tools of forensic serology described in this chapter. Blood
typing has been used to help resolve paternity cases since the mid- 1920's.
According to Latters, there were 3,000 cases tested in Berlin in 1924, and
Schiff and Boyd said that the first case went to court in Berlin in 1924. Ottenberg,
in this country published paternity exclusion tables in 192 1, as did Dyke in
England in 1922. It took somewhat longer to satisfy the courts, both in Europe
and in country, that parentage exclusions based upon blood grouping were
completely valid. Wiener said that he had obtained an exclusion in a paternity
case in this country which reached the courts early in 1933. In January of
1934, Justice Steinbrink of the New York Supreme Court in Brooklyn ordered that
blood tests be performed in a disputed paternity action, using a s precedent a
decision by the Italian Supreme Court of Cassation, but his order was reversed
upon appeal. Soon afterward, however, laws were passed in a number of states
providing the courts with statutory authority to order blood testing in
disputed paternity cases.
testing has developed somewhat more slowly in the Unitted States than in
certain of the European countries, but today the differences in the number of
systems employed, and judicial acceptance of the results, are no longer that
great. A number of authorities have recently reviewed the subject of paternity
testing in some detail, and in some cases have summarized the results of large
number of cases that they have investigated.
points out that failure to exclude a man, even at the 95 percent level of
paternity exclusion does not mean that the alleged father is proven to be
biologic father, because absolute proof of paternity cannot be established by
any known blood test available.
this fact is well known and appreciated by workers it), the field of blood
grouping and by attorneys active in this area, it is not generally understood
by the lay public. However, blood group 924 serology, using proven genetic
marker systems, represents the most accurate scientific information concerning
paternity and is so recognised in the United States, as well as in a number of
countries abroad." In India there is no special statute governing this.
the Criminal Procedure Code nor the Evidence Act empowers the court to direct
such a test to be made. In 1951 (1) Madras Law Journal p.58O Polavarapu Venkteswarlu,
minor by guardian and mother Hanwnamma v. Polavarapu Subbayya in that case the
application was preferred under section 151 of the Code of Civil Procedure
invoking the inherent powers of the Court to direct a blood test. The learned
judge was of the following view:- Section 15 1, Civil Procedure Code, has been
introduced in to the Statute book to give effect to the inherent powers. of
Courts as expounded by Woodroffe, J., in Hukum Chand Boid v. Kamalan and Singh.
Such powers can only be exercised ex debito justice and not on the mere
invocation of parties or on the mere volition of courts. There is no procedure
either in the Civil Procedure Code or in the Indian Evidence Act which provides
for a test of the kind sought to be taken by the defendant in the present case.
It is said by Mr. Ramakrishna for the respondent before m e that in England this sort of test is resorted to by
Courts where the question of non-access in connection with an issue of
legitimacy arises for consideration. My attention has been drawn by learned
counsel to page 69 of Taylor's Principles and Practice of
Medical Jurisprudence, Volume 2, where it is stated thus:
Wilson v. Wilson, Lancet  1. 570, evidence was given that the
husband's group was OM, that the wife's was BM and that
the child's was ABN. The Court held that the husband was not the father of
child, and granted a decree for nullity." "It is also pointed out by
learned counsel that in the text books on Medical Jurisprudence and Toxicology
by Rai Bahadur Jaising P. Moi, (8th Edition), at page 94, reference is made to a
case decided by a Criminal Court at Mercare in June, 194 1, in which the
paternity and maternity of the child being under dispute, the Court resorted to
the results of the blood grouping test." 925 That may be. But I am not in
any event satisfied that if the parties are unwilling to offer their blood for
a test of this kind this Court can force them to do so." The same view was
taken by the Kerala High Court in Vasu v. Santha 1975 Kerala Law Times p. 533
as "A special protection is given by the law to the status of legitimacy
in India. The law is very strict regarding
the type of the evidence which can be let in to rebut the presumption of
legitimacy of a child. Even proof that the mother committed adultery with any
number of men will not of itself suffice for proving the illegitimacy of the
child. If she had access to her husband during the time the child could have
been begotten the law will not countenance any attempt on the part of the
husband to prove that the child is not actually his. The presumption of law of
legitimacy of a child will not be lightly repelled. It will not be allowed to
be broken or shaken by a mere balance of probability.
evidence of non-access for the purpose of repelling it must be strong,
distinct, satisfactory and conclusive see Morris v. Davies, (1837) 5 Cl. &
Fin. 163. The standard of proof in this regard is similar to the standard of
proof of guilt in a criminal case.
are justified by considerations of public policy for there are a variety of
reasons why a child's status is not to be triffled with. The stigma of
illegitimacy is very severe and we have not any of the protective legislations
as in England t o protect illegitimate children. No doubt, this may in some
cases require a husband to maintain children of whom he is probably not their
father. But, the legislature alone can change the rigour of the law and not the
court. The court cannot base a conclusion on evidence different from that
required by the law or decide on a balance of probability which will be the
result if blood test evidence is accepted.
is an aspect of the matter also. Before a blood test of a person is ordered his
consert is required. The reason is that this test is a constraint on his
personal liberty and cannot be carried out without his consent.
even a legislature can compel a blood test is doubtful. Here no consent is
given by any of the respondents. It is also doubtful whether a guardian ad litem
can give this consent. Therefore, in these circumstances, the learned Munsiff
was right in 926 refusing the prayer for a blood test of the appellant and
respondents 2 and 3. The learned Judge is also correct in holding that there
was no illegality in refusing a blood test.
maximum that can be done where a party refuses to have a blood test is to draw
an adverse inference (see in this connection Subayya Gounder v. Bhoopala, AIR
1959 Madras 396, and the earlier decision of the same court in Venkateswarlu v.
Subbayya AIR 1951 Madras 910. Such an adverse inference which has only a very
little relevance here will not advance the appellants case to any extent. He
has to prove that he had no opportunity to have any sexual intercourse with the
1st respondent at a time when these children could have been begotten. That is
the only proof that is permitted under S. II 2 to dislodge the conclusive
presumption enjoined by the Section." In Hargavind Soni v. Ramdulari AIR
1986 MP at 57 held as:- "The blood grouping test is a perfect test to
determine questions of disputed paternity of a child and can be relied upon by
Courts as a circumstantial evidence. But no person can be compelled to give a
sample of blood for blood grouping test against his will and no adverse
inference can be drawn against him for this refusal." Blood grouping test
is a useful test to determine the question of disputed paternity. It can be
relied upon by courts as a circumstantial evidence which ultimately excludes a
certain invididual as a father of the child.
it requires to be carefully noted no person can be compelled to give sample of
blood for analysis against her will and no adverse inference can be drawn
against her for this refusal.
v. Shardabai 1986 AIR Bombay 388, it was observed blood grouping test have
their limitation, they cannot possibly establish paternity, they can only
indicate its possibilities.
v. Sumesh Sachdeo & Ors., 1986 AIR Allahabad 2591 held as:-
"Discussing the evidentiary value of blood tests for determining
paternity, Rayden on Divorce, (1983) Vol. 1) p. 1054 has this to say
"Medical Science is able to analyse the blood of individuals 927 into
definite groups: and by examining the blood of a given man and a child to
determine whether the man could or could not be the father. Blood tests cannot
show positively that any man is father, but they can show positively that a
given man could or could not be the father. It is obviously the latter aspect
the proves most valuable in determining paternity, that is, the exclusion
aspect for once it is determined that a man could not be the father, he is
thereby automatically excluded from considerations of paternity.
man is not the father of a child, it has been said that there is at least a 70
per cent chance that if blood tests are taken they will show. positively he is
not the father, and in some cases the chance is even higher:
two giver men who have had sexual intercourse with. the mother at the time of
conception, both of whom undergo blood tests, it has likewise been said that
there is a 80 per cent chance that the tests will show that one of them is not
the father with the irresistible inference that the other is the father.
position which emerges on reference to these authoritative texts is that
depending on the type of litigation, samples of blood, when subjected to
skilled scientific examination, can sometimes supply helpful evidence on
various issues, to exclude a particular parentage set up in the case. But the
consideration remains that the party asserting the claim to have a child and the
rival set of parents put to blood test must establish his right so to do. The
court exercises protective jurisdiction on behalf of an infant. In my
considered opinion it would be unjust and not fair either to direct a test for
a collateral reason to assist a litigant in his or her claim. The child cannot
be allowed to suffer because of his incapacity;
aim is to ensure that he gets his rights.
a case the court has reason to believe that the application for blood test is
of a fishing nature or designed for some ulterior motive, it would be justified
in not acceding to such a prayer." "The above is the dicta laid down
by the various High Courts. In matters of this kind the court must have regard
to section 112 of the Evidence Act. This section is based on the well known
maxim pater est quem nuptioe demonstrant (he is the father whom the marriage
indicates). The presumption of legitimacy is this, that a child born of a
married woman is deemed to be legitimate, it throws on the person who is
interested in making out the illegitimacy, the whole burden of proving it. The
law presumes both that a marriage ceremony is valid, any that every 928 person
is legitimate. Marriage or filiation (parentage) may be presumed, the law in
general presuming against vice and immoratility." It is a rebuttable
presumption of law that a child born.
the lawful wedlock is legitimate, and that access occurred between the parents.
This presumption can only be displaced by a strong preponderannce of evidence,
and not by a mere balance of probabilities.
Dukhtar Jahan v. Mohammed Faroog AIR 1987 SC 1049 this court held.
II 2 lays down that if a person was born during the continuance of a valid
marriage between his mother and any man or within two hundren and eighty days
after its dissolution and the mother remains unmarried, it shall be taken as
conclusive proof that he is the legitimate son of that man, unless it can be
shown that the parties to the marriage had no access to each other at anytime
when he could have been begotten. This rule of law based on the dictates of
justice has always made the courts incline towards upholding the legitimacy of
a child unless the facts are so compulsive and clinching as to necessarily
warrant a finding that the child could not at all have been begotten to the
father and as such a legitimation of the child would result in rank injustice
to the father. Courts have always desisted from lightly or hastily rendering a
verdict and that too, on the basts of slender materials, which will have the
effect of branding a child as a bastard and its mother an unchaste woman."
This section requires the party disputing the paternity to prove non-access in
order to dispel the presumption.
and "non-access" mean the existence or non- existence of
opportunities for sexual intercourse; it does not mean actual cohabitation.
effect of this section is this: there is a presumption and a very strong one
though a reubttable one. Conclusive proof means as laid down under section 4 of
the Evidence Act.
the above discussion it emerges:- (1) that courts in India cannot order blood
test as matter of course;
(2) wherever applications are made for such prayers in order to have roving
inquiry, the prayer for blood test cannot be entertained.
There must be a strong primafacie case in that the husband must establish
non-access in order to dispel the presumption arising under section 112 of the
The court must carefully examine as to what would be the consequence 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.
one can be compelled to give sample of blood for analysis.
in the light of the above, we find no difficulty in upholding the impugned
order of the High Court, confirming the order of the Addl. Chief Judicial
Magistrate, Alipore in rejecting the application for blood test. We find the
purpose of the application is nothing more than to avoid payment of maintenance,
without making any ground whatever to have recourse to the test. Accordingly
Criminal Appeal will stand dismissed. Cr, M.P.No. 2224/93 in S.L.P.(cr No.
2648/92 filed by Respondent No. 2 will stand allowed. She is permitted to
withdraw the amount without furnishing any Security.