Bhabani
Prasad Jena Etc. Vs. Convenr.Sec.Orissa S.Comn. for Women & ANR. [2010] INSC
574 (3 August 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6222-6223
OF 2010 (Arising out of SLP(C) Nos. 22905-22906 of 2009) Bhabani Prasad Jena
...Appellant Versus Convenor Secretary, Orissa State Commission for Women &
Anr. ...Respondents JUDGEMENT R.M. Lodha, J.
1.
Leave granted.
2.
Two questions arise for consideration-first, the extent of power
of the State Commission for Women constituted under Section 3 of the Orissa
(State) Commission for Women Act, 1993 (for short, `1993 Act') and then, as to
whether the High Court of Orissa was justified in issuing direction for
deoxyribonucleic acid test (DNA) of the child and the appellant who, according
to the mother of the child, was its father suo motu. These questions arise in
this way. On May 15, 2007, Bhabani Prasad Jena-the appellant and Suvashree
Nayak-respondent no. 2 got married.
The
certificate of marriage was issued by the Marriage Officer, Khurda, Bhubaneswar
on June 30, 2007 under Section 13 of the Special Marriage Act, 1954 (for short,
`1954 Act'). In less than three months, to be precise, on August 7, 2007 the
appellant filed a petition under Section 25(iii) of the 1954 Act in the Court
of District Judge, Khurda, Bhubaneswar for a declaration that the marriage
between him and the respondent no. 2, registered on June 30, 2007 was nullity
and the said marriage has not been consummated. In that matrimonial
proceedings, the respondent no. 2 has filed written statement and traversed the
allegations made in the petition. She also claimed permanent alimony to the
tune of Rs. 10,00,000/-. It is not necessary to refer to the matrimonial
proceedings in detail; suffice, however, to observe that the said proceedings
are pending.
3.
On December 30, 2008 the respondent no. 2 filed a complaint before
Orissa (State) Commission for Women (for 2 short, `State Commission') alleging
that she was married to the appellant and due to torture meted out to her by
the appellant and his family members and other issues, they have separated; she
has no source of income and she was pregnant. Based on the said complaint, the
State Commission issued notices to both the parties. On April 20, 2009, the
parties appeared before the State Commission. The appellant submitted his
written reply to the complaint and stated that marriage between the parties was
invalid due to fraud and coercion and that he has already applied to the
District Court, Khurda for declaring the marriage null and void.
4.
The Chairperson, State Commission passed an order on May 11, 2009
issuing the following directions:
"1.
Maintenance is compulsory for the petitioner, as she has to have safe delivery
and take care of the baby.
2.
Compensation amount would be minimum 50% of Gross salary amount of Sri Bhabani
Prasad Jena, Surgent. Amount to be placed in the A/C of the mother directly by
the office of DDO (Drawl and disbursing officer).
3.
Delivery expenses of Smt. Nayak will be borne by Sri Bhabani Prasad Jena as per
actual.
4. D.N.A.
test of Smt. Nayak will be conducted through S.P., Nawarangpur & report is
sent to OSCW for future reference."
In the
said order, it was observed that the aforesaid directions are subject to the
final order of the appropriate court.
5.
The appellant challenged the aforesaid order by filing a writ
petition before the High Court of Orissa. The appellant took the position that
he has not fathered the child in the womb of respondent no. 2 and there has
been no relationship of husband and wife since August 7, 2007 (the date of
filing of the matrimonial case before the District Judge, Khurda). It should be
noted here that a letter was sent by the respondent no. 2 to the Chief Justice
of Orissa High Court on June 9, 2009 giving the history of relationship between
her and the appellant; their marriage; harassment meted out to her by the
appellant and his family members; advanced stage of her pregnancy and that she
was staying at Sanjivani Ma Ghar. She prayed for justice as her delivery was
expected on June 15, 2009. The vacation Judge treated the said letter as writ
petition and on June 9, 2009 itself directed the Chief District Medical
Officer, Bhubaneswer to admit the respondent no. 2 in the Capital Hospital at
the cost of the 4 State and the matter was ordered to be posted after vacation
before the regular bench. It may also be noted that a day earlier i.e., on June
8, 2009 the Division Bench passed an interim order in the writ petition filed
by the appellant staying the operation of clauses 2 and 3 of the order passed
by the State Commission but clarified that directions regarding maintenance and
DNA are not stayed.
6.
On August 7, 2009, the High Court took up both writ petitions for
consideration and passed an order directing that the DNA of the child shall be
conducted in the SCB Medical College and Hospital, Cuttack and the appellant
shall also give his blood sample for the purpose of DNA. This order is impugned
in the present appeals by special leave.
7.
The 1993 Act was enacted by the Orissa State Legislature to
constitute a State Commission for Women and to provide for matters connected
with or incidental thereto.
Functions
of the Commission are specified in Section 10 which reads thus:
"S.10.-
Functions of Commission--(1) The Commission shall perform all or any of the
following functions, namely :
5 (a)
make indepth studies on-- (i) the economic, educational and health situation of
the women of the State, with particular emphasis on the tribal districts and
areas which are under developed with respect to women's literacy, mortality and
economic development.
(ii)
condition in which women work in factories, establishments, con-struction sites
and other similar situations, and recommend to the State Government on the
basis of specific reports on improving the status of women in the said areas;
(b)
compile information, from time to time, on instances of all offences against
women in the State, or in selected areas, including cases related to marriage
and dowry, rape, kidnapping, criminal abduction, eve-teasing, immoral
trafficking in women and cases of medical negligence in causing delivery or
sterilization or medical intervention that relates to child bearing or child
birth;
(c) will
co-ordinate with the State Cell and District Cells for atrocities against
women, if any for mobilization of public opinion in the State as a whole or in
specific areas which would help in speedy reporting and detection of offences
of such atrocities and mobilization or public opinion against the offenders;
(d)
receive complaints on-- (i) atrocities on women and offences against women, 6
(ii) deprivation of women of their rights relating to minimum wages, basic
health and maternity rights, (iii) non-compliance of policy decisions of the
Government relating to women, (iv) rehabilitation of deserted and destitute
women and women forced into prostitution, (v) atrocities on women in custody,
and take up with authorities concerned for appropriate remedial measures;
(e)
assist, train and orient the non-Government organization in the State in legal
counseling of poor women and enabling such women to get legal aid;
(f)
inspect or cause to be inspected, a jail, remand home, women's institution or
other place of custody where women are kept as prisoners or otherwise and take
up with the concerned authorities for remedial action, if found necessary;
(g)
perform functions in relation to any other matter which may be referred to it
by the State Government.
(2) The
State Government shall cause all the recommendations or reports, or any part
thereof, as may be presented to it by the Commission under Sub-section (1),
which relate to any matter with which the State Government is concerned, to be
laid before the Legislature of the State alongwith a memorandum explaining the
action taken or proposed to be taken on the recommendations of the Commission
and the reasons for the non-acceptance, if any, of such recommendations.
7 (3) The
Commission shall, while investigating any matter referred to in Clause (a) or
Clause (d) of Sub- section(1), have all the powers of a Civil Court trying a
suit and, in particular, in respect of the following matters, namely :
(a)
summoning and enforcing the attendance of any person from any part of India and
examining him on oath;
(b)
requiring the discovery and production of any document;
(c)
receiving evidence on affidavits;
(d)
requisitioning any public record or copy thereof from any Court or office;
(e)
issuing commissions for the examination of witness and documents; and (f) any
other matter which may be prescribed."
8.
It would be seen from Section 10 of the 1993 Act that the State
Commission has been authorized to take up studies in respect of economic,
educational and health situation of the women of the State and also the working
conditions of women in the factories, establishments, construction sites and
make its recommendations to the State Government. The State Commission is
empowered to compile information in respect of the offences against women and
to coordinate with the State Cell 8 and District Cells for atrocities against
women. Further, the State Commission is competent to receive complaints in
respect of the matters specified in Section 10(1)(d) and take up the grievances
raised in the complaint/s with the concerned authorities for appropriate
remedial measures. The State Commission is also given role of assisting,
training and orienting the non-Government organization in the State in legal
counseling of poor women and enabling such women to get legal aid. Under clause
(f) of Section 10(1), the State Commission is authorized to inspect or cause to
be inspected, a jail, remand home, women's institution or other place of
custody where women are kept as prisoners or otherwise and take up with the
concerned authorities these matters for remedial action. In other words, the
State Commission is broadly assigned to take up studies on issues of economic,
educational and healthcare that may help in overall development of the women of
the State; gather statistics concerning offences against women; probe into the
complaints relating to atrocities on women, deprivation of women of their
rights in respect of minimum wages, basic health, maternity rights, etc. and
upon ascertainment of facts take up the matter with the concerned 9 authorities
for remedial measures; help women in distress as a friend, philosopher and
guide in enforcement of their legal rights.
However,
no power or authority has been given to the State Commission to adjudicate or
determine the rights of the parties.
Mr.
Ranjan Mukherjee, learned counsel for respondent no. 2 submitted that once a
power has been given to the State Commission to receive complaints including
the matter concerning deprivation of women of their rights, it is implied that
the State Commission is authorized to decide these complaints.
We are
afraid, no such implied power can be read into Section 10(1)(d) as suggested by
the learned counsel. The provision contained in Section 10(1)(d) is expressly
clear that the State Commission may receive complaints in relation to the
matters specified therein and on receipt of such complaints take up the matter
with the authorities concerned for appropriate remedial measures. The 1993 Act
has not entrusted the State Commission with the power to take up the role of a
court or an adjudicatory tribunal and determine the rights of the parties. The
State Commission is not a tribunal discharging the functions of a judicial
character or a court. Learned counsel for respondent no.
10 2 then
referred to Section 10(3) and submitted that the State Commission has been
conferred with all the powers of a Civil Court trying a suit. We are afraid,
this is not at all proper reading of Section 10(3). The expression, `have all
the powers of a Civil Court' in Section 10(3) is qualified by the following
words, `in respect of the following matters'. That is to say, the State
Commission has powers of Civil Court trying a suit for the matters specified in
clauses (a) to (f) thereof and not for other purposes.
It is
clear to us that the Legislature has not gone so far as to give jurisdiction to
the State Commission to make an order such as the one that has been made. From
whatever angle we may examine the validity of the directions given by the State
Commission in its order dated May 11, 2009, it appears to us that the said
order was outside the jurisdiction, power or competence of the State
Commission. It was an order which the State Commission had no competence to
make and, therefore, a void order. The High Court instead of correcting that
order went a step further and directed that DNA of the child as well as the
appellant shall be conducted.
9.
Whether such a direction could be given by the High Court? Before
we answer this question, we shall notice few decisions of this Court dealing
with the power of the Court in directing DNA. In Goutam Kundu v. State of West
Bengal and Anr.1, this Court was concerned with a matter arising out of
maintenance for child claimed by the wife. The husband disputed the paternity
of the child and prayed for blood group test of the child to prove that he was
not the father of the child. This Court referred to Section 4 and Section 112
of the Evidence Act and also the decisions of English and American Courts and
some authoritative texts including the following statement made in Rayden's Law
and Practice in Divorce and Family Matters (1983), Vol. I, p. 1054 which reads
thus:
"Medical
Science is able to analyse the blood of individuals 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 that 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. When a man is not 1 (1993) 3 SCC 418 12 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; between two given 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 90 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."
This
Court then finally concluded, thus :
"(1)
that courts in India cannot order blood test as a 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.
(3) There
must be a strong prima facie case in that the husband must establish non-
access in order to dispel the presumption arising under Section 112 of the
Evidence Act.
(4) 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.
(5) No
one can be compelled to give sample of blood for analysis."
10.
In Sharda v. Dharmpal2, a three-Judge Bench was concerned with the
question whether a party to the divorce proceedings can be compelled to a
medical examination. That case arose out of an application for divorce filed by
the husband against the wife under Section 13(1)(iii) of the Hindu Marriage
Act, 1955. In other words, the husband claimed divorce on the ground that wife
has been incurably of unsound mind or has been suffering from mental disorder.
The Court observed, "Goutam Kundu is, therefore, not an authority for the
proposition that under no circumstances the Court can direct that blood tests
be conducted. It, having regard to the future of the child, has, of course,
sounded a note of caution as regards mechanical passing of such order. In some
other jurisdictions, it has been held that such directions should ordinarily be
made if it is in the interest of the child." While dealing with the aspect
as to whether subjecting a person to a medical test is violative of Article 21
of the Constitution of India, it was stated that the right to privacy in terms
of Article 21 of the Constitution is not an absolute right.
This
Court summed up conclusions thus :
2 (2003)
4 SCC 493 14 "1. A matrimonial court has the power to order a person to
undergo medical test.
2.
Passing of such an order by the court would not be in violation of the right to
personal liberty under Article 21 of the Indian Constitution.
3.
However, the Court should exercise such a power if the applicant has a strong
prima facie case and there is sufficient material before the Court. If despite
the order of the court, the respondent refuses to submit himself to medical
examination, the court will be entitled to draw an adverse inference against
him."
11.
In Banarsi Dass v. Teeku Dutta & Anr.3, this Court was
concerned with a case arising out of succession certificate.
The
allegation was that Teeku Dutta was not the daughter of the deceased. An
application was made to subject Teeku Dutta to DNA test. The High Court held
that trial court being a testamentary court, the parties should be left to
prove their respective cases on the basis of the evidence produced during
trial, rather than creating evidence by directing DNA test. When the matter
reached this Court, few decisions of this Court, particularly, Goutam Kundu1
was noticed and it was held that even the result of a genuine DNA test may not
be enough to 3 (2005) 4 SCC 449 15 escape from the conclusiveness of Section
112 of the Evidence Act like a case where a husband and wife were living
together during the time of conception. This is what this Court said :
"13.
We may remember that 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 of Section 112 of the
Evidence Act e.g.
if a
husband and wife were living together during the time of conception but 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 the fatherhood of a child of which he
may be innocent. But even in such a case the law leans in favour of the
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 as delineated above."
It was
emphasized that DNA test is not to be directed as a matter of routine and only
in deserving cases such a direction can be given.
12.
Recently, in the case of Ramkanya Bai v. Bharatram4 decided by the
Bench of which one of us, R.M. Lodha, J. was the member, the order of the High
Court directing DNA of the child at 4 (2010) 1 SCC 85 16 the instance of the
husband was set aside and it was held that the High Court was not justified in
allowing the application for grant of DNA of the child on the ground that there
will be possibility of reunion of the parties if such DNA was conducted and if
it was found from the outcome of the DNA that the son was born out of the
wedlock of the parties.
13.
In a matter where paternity of a child is in issue before the
court, the use of DNA is an extremely delicate and sensitive aspect. One view
is that when modern science gives means of ascertaining the paternity of a
child, there should not be any hesitation to use those means whenever the
occasion requires.
The other
view is that the court must be reluctant in use of such scientific advances and
tools which result in invasion of right to privacy of an individual and may not
only be prejudicial to the rights of the parties but may have devastating effect
on the child.
Sometimes
the result of such scientific test may bastardise an innocent child even though
his mother and her spouse were living together during the time of conception.
In our view, when there is apparent conflict between the right to privacy of a
person not to submit himself forcibly to medical examination and duty of the 17
court to reach the truth, the court must exercise its discretion only after
balancing the interests of the parties and on due consideration whether for a
just decision in the matter, DNA is eminently needed. DNA in a matter relating
to paternity of a child should not be directed by the court as a matter of
course or in a routine manner, whenever such a request is made. The court has
to consider diverse aspects including presumption under Section 112 of the
Evidence Act; pros and cons of such order and the test of `eminent need'
whether it is not possible for the court to reach the truth without use of such
test.
14.
There is no conflict in the two decisions of this Court, namely,
Goutam Kundu1 and Sharda2 . In Goutam Kundu1 , it has been laid down that
courts in India cannot order blood test as a matter of course and such prayers
cannot be granted to have roving inquiry; there must be strong prima facie case
and court must carefully examine as to what would be the consequence of
ordering the blood test. In the case of Sharda2 while concluding that a
matrimonial court has power to order a person to undergo a medical test, it was
reiterated that the court should exercise such a power if the applicant has a
strong prima facie case and there is 18 sufficient material before the court.
Obviously, therefore, any order for DNA can be given by the court only if a
strong prima facie case is made out for such a course. Insofar as the present
case is concerned, we have already held that the State Commission has no
authority, competence or power to order DNA. Looking to the nature of
proceedings with which the High Court was concerned, it has to be held that
High Court exceeded its jurisdiction in passing the impugned order.
Strangely,
the High Court over-looked a very material aspect that the matrimonial dispute
between the parties is already pending in the court of competent jurisdiction
and all aspects concerning matrimonial dispute raised by the parties in that
case shall be adjudicated and determined by that Court. Should an issue arise
before the matrimonial court concerning the paternity of the child, obviously
that court will be competent to pass an appropriate order at the relevant time
in accordance with law. In any view of the matter, it is not possible to
sustain the order passed by the High Court.
15.
Consequently, the appeals are allowed; the order of the High Court
dated August 7, 2009 and the order of the Orissa 19 State Commission for Women
dated May 11, 2009 are set aside.
WP(C) No.
8725 of 2009 and WP (C) No. 8308 of 2009 pending before the High Court stand
disposed of in view of this order.
We
clarify that our order shall not preclude the respondent no. 2 from claiming
maintenance or any other order of financial support against the appellant in
appropriate proceedings from the court of competent jurisdiction or in the
petition filed by the appellant before the District Judge, Khurda, Bhubaneswar.
Obviously the appellant shall be at liberty to contest the claim of respondent
no.
2 on all
available grounds and the concerned Court shall consider and determine such
claim in accordance with law on its own merits. The parties shall bear their
own costs.
........................J (Aftab Alam)
........................J (R. M. Lodha)
New Delhi
August 3, 2010.
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