Bhabani Prasad Jena Etc vs Convenr.Sec.Orissa S.Comn.For ...

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:

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.

(5) No one can be compelled to give sample of blood for analysis."

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."

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.