S. MOHAN, J.

1. Leave granted

2. The appellant herein was married to second respondent on January 16, 1990 according to Hindu rites and customs. They 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 April 5, 1990 and continued up to May 10, 1990. 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 being forced to undergo abortion which was refused by the second respondent. During the stay she was meted out cruel treatment both physically and mentally. She came back to the matrimonial (sic maternal) home during Durga Pooja in the month of October, 1990. A female child was born on January 3, 1991. She filed a petition under Section 125 CrPC before the learned Chief Judicial Magistrate, Alipore in Misc. Case No 143 of 1991 both for herself and the child. By an order dated August 14, 1991 which was passed ex parte he awarded a sum of Rs. 300 per mensem to the mother and Rs. 200 to the child. Against that order, the appellant moved a revision to the High Court. That revision is pending as No. 1837 of 1991. Thereafter the petitioner filed a Crl. Misc. Case No. 143 and 1991 for blood group test of the second respondent and the child

3. In that proceeding the petitioner herein disputed the paternity of the child and prayed for blood group test of of the child to prove that he was not the father of the child. According to him if that could be established he would not be liable to pay maintenance. That application was dismissed on two ground : (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

4. Aggrieved by this order, 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

5. The English law permitting blood test for determining the legitimacy of paternity 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

6. It is the contention of Mr. Ashoke Sen, learned counsel for the appellant that the only way for the father to disprove the paternity is 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 L., Re ( 1968 (1) ALLER 20 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

7. There is a 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

8. Before 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

9. By 1930s other immunological tests became available. As a result the possibility of establishing paternity increased. An attempt by way of statutory provision to make blood test compulsory in England 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 had intercourse with her at that time. Failing the fathers attempt, the mothers evidence had to be corroborated by facts such as blood test etc

10. Under the 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

11. The Family Reforms Act, 1969 conferred powers on the court to direct taking of 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. Since 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 that the court cannot order a person to submit to tests but can draw adverse inferences from a refusal to do so. Now under Family 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. Father 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 mothers statement of paternity

12. Tow cases may be usefully referred to L., Re ( 1968 (1) ALLER 20 All ER 1023 : 1968 (3) WLR 566) Lord Denning M. R. stated thus : [p. 23 D] "... but they can say positively that a given a man cannot be the father, because the blood groups of him and the child are so different."

13. B. R. B. v. J. B. 1968 (2) ALLER 1023: (1 9568 (3) WLR 566) applied this dictum and Lord Denning M.R. held as under : [p. 1025 F-G to 1025 I]

"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 magistrates court has no power to order a blood test against the will of the parties. The 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 the refusal into account. I adhere to the view which I expressed in L., Re ( 1968 (1) ALLER 20 that

If an adult unreasonable refuses to have a blood test, or to allow a child to have one, I think that is 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 refusal as evidence against him, and may draw an inference therefrom adverse to him. This is simply 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. The 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."

Diploch, L.J. while concurring held : [p. 1027 A-B]

"... Having heard full argument on the case, I am 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 childs best interests that it should be made." *

14. As regards 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 paternity cases since the mid-1920s. According to Lattes, there were 3000 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 1921, as did Dyke in England in 1922. It took somewhat longer to satisfy the courts, both in Europe and in this 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 as 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

Paternity testing has developed somewhat more slowly in the United 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 investigatedWalker point out that failure to exclude a man, even at the 95 per cent 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. Although this fact is well known and appreciated by workers in the field of blood grouping and by attorneys active in this area, it is not generally understood by the lay public. However, blood group serology, using proven genetic marker system, 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."

15. 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 to be made. In Polvarapu Venkateswarlu, minor by guardian and mother Hanumamma v. Polavarapu Subbayya ( 1951 (1) MLJ 580 [LQ/MadHC/1951/27] : 1951 AIR(Mad) 910 (1), para 3) 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 151, 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 Baid v. Kamalanand Singh 1905 (33) ILR(Cal) 927, 931-32 : 2002 (3) CLJ 67). Such powers can only be exercised ex debito justitiae 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 me that in England this sort test is resorted to by courts where the question on non-access in connection with an issue of legitimacy arises for consideration. My attention has been drawn by learned counsel to page 69 of Taylors Principles and Practice of Medical Jurisprudence, Volume 2, where it is stated thusIn Wilson v. Wilson (Lancet 1942 I. 570) evidence was given that the husbands group was OM, that the wifes was BM and that the childs was ABN. The court held that the husband was not the father of the child, and granted a decree for nullity.

It is also pointed out by learned counsel that in the textbooks of Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P. Modi, (8th Edition), at page 94, reference is made to a case decided by a criminal court at Mercara in June, 1941, in which the paternity and maternity of the child being under dispute, the court resorted to the results of the blood grouping test

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 be forced to do so."

16. The same view was taken by the Kerala High Court in Vasu v. Santh 1975 KLT 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. The evidence of non-access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive (see Morris v. Davies ((1837 5 CI & Fin 163). The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case. These rigours are justified by considerations of public policy for there are a variety of reasons why a childs status is not to be trifled with. The stigma of illegitimacy is very severe and we have not any of the protective legislations as in England to protect illegitimate children. No doubt, this may is 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 acceptedThere is another aspect of the matter also. Before a blood test of a person is ordered his consent is required. The reason is that this test is a constraint on his personal liberty and cannot be carried out without his consent. Whether 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 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. The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference (see in this connection Subbayya Gounder v. Bhoopala 1959 AIR(Mad) 396 : 1959 (65) CrLJ 1087 : (1957) 1 MLJ (Cri) 822) and the earlier decision of the same court in Venkateswarlu v. Subbayya ( 1951 (1) MLJ 580 [LQ/MadHC/1951/27] : 1951 AIR(Mad) 910 (1), para 3). Such an adverse inference which has only a very little relevance here will not advance 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 Section 112 to dislodge the conclusive presumption enjoined by the section."

17. In Hargovind Soni v. Ramdulari 1986 AIR(MP) 57 : 1986 MPLG 105 : (1986) 1 Hindu LR 543) it was held

"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 of blood for blood grouping test against his will and no adverse inference can be drawn against him for this refusal." *

18. 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 individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for this refusal

19. In Raghunath Eknath Hivale v. Shardabai Karbharikale 1986 AIR(Bom) 386 : (1985) 87 Bom LR 657 : 1986 MLJ 170) it was observed that blood grouping testes have their limitation, they cannot possibly establish paternity, they can only indicate its possibilities

20. In Bharti Raj v. Sumesh Sachdeo 1986 AIR(All) 259) it was held as under

"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 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. 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 the father of a child, it has been said there is at least 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 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.

The position which emerges on reference to these authoritative texts is that depending on the type for 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 exercise 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; the aim is to ensure that he gets his rights. If in 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."

21. 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 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 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, and that every person is legitimate. Marriage of filiation (parentage) may be presumed, the law in general presuming against vice and immorality

22. It is rebuttable presumption of law that a child born during the lawful wedlock is 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

23. In Dukhtar Jahan (Smt.) v. Mohammed Farooq ( 1987 (1) SCC 624 [LQ/SC/1987/63] : 1987 SCC(Cri) 237 : 1987 AIR(SC) 1049) this Court held : (SCC p. 629, para 12)

"... Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after is dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of the man, unless it can be shown that the parties to the marriage had no access to each other at any time 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 basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman." *

24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. "Access" and "non-access" mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual "cohabitation"

25. The effect of this section is this : there is a presumption and a very strong one though a rebuttable one. Conclusive proof means as laid down under Section 4 of the Evidence Act

26. From the above discussion it emerges -

(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

27. Examined in the light of the above, we find no difficulty in upholding the impugned order of the High Court, confirming the order of the Additional 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 allowed. Crl. M.P. No. 2224 of 1993 in SLP (Crl) No. 2648 of 1992 filed by respondent 2 will stand allowed. She is permitted to withdraw the amount furnishing any security.