BHABANI PRASAD JENAversusCONVENOR SECRETARY, ORISSA STATE COMMISSION FOR WOMEN & ANR.

                   [2010] 9 S.C.R 457


                  BHABANI PRASAD JENA                                 A
                                v.
CONVENOR SECRETARY, ORISSA STATE COMMISSION
            FOR WOMEN & ANR.
            (Civil Appeal No. 6222-6223 of 2010)
                                                                      B
                      AUGUST 03, 2010

          [R.M. LODHA AND AFTAB ALAM, JJ.]

     Orissa (State) Commission for Women Act, 1993 - s.10
- Extent of power of the State Commission for Women                   C
constituted under s.3 of the Act - Discussed - Held: The 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             D
character or a court - On facts, the State Commission had
no authority, competence or power to order ONA test pursuant
to a complaint filed by a woman alleging torture at the hands
of her husband and in-laws.
                                                                      E
      Constitution of India, 1950 - Article 226 - Power of Court
in directing DNA test - Scope - Writ petition challenging the
order passed by the Orissa State '::ommission for Women -
High Court issued direction for ONA test of a child and the
appellant who, according to the mother of the child, was its          F
father - Propriety of- Held: Not proper- DNA test 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 s. 112 of the Evidence
Act; pros and cons of such order and the test of 'eminent need'       G
whether it is not possible for the court to reach the truth without
use of such test - Any order for DNA test can be given by
the court only if a strong prima facie case is made out for such
a course - On facts, the High Court exceeded its jurisdiction
                                457                                   H
    458     SUPREME COURT REPORTS              [2010] 9 S.C.R.


A in passing the impugned order over-looking a very material
    aspect that the matrimonial dispute between the parties was
    already pending in the court of competent jurisdiction -
    Evidence Act, 1872 - s. 112.

      The appellant filed a petition under Section 25(iii) of
8
  the Special Marriage Act, 1954 for declaration that the
  marriage between him and respondent no.2, was a nullity
  and was not consummated. While the matrimonial
  proceedings were still pending, respondent no.2 filed a
C complaint before the Orissa (State) Commission for
  Women alleging that due to torture meted out to her by
  the appellant and his family members and other issues,
  they have separated and that she has no source of
  income and was pregnant.

D     The State Commission directed the appellant to pay
  maintenance to respondent no.2, and also ordered for her
  DNA test. The appellant filed writ petition before the High
  Court contending that'he had not fathered the child in the
  womb of respondent no.2. The High Court upheld the
E order passed by the State Commission and further
  directed that DNA of the child as well as the appellant be
  conducted.

       In the instant appeals, two questions arose for
  consideration -first, the extent of power of the State
F Commission for Women constituted under Section 3 of
  the Orissa (State) Commission for Women Act, 1993 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
G mother of the child, was its father suo motu.

          Allowing the appeals, the Court

       HELD:1.1 The Orissa (State) Commission for Women
H Act, 1993 was enacted by the Orissa State Legislature to
  BHABANI PRASAD JENA v. CONVENOR SECY.                 459
        ORISSA S.COMN. FOR WOMEN
constitute a.state Commission for Women and to provide          A
for matters connected with or incidental thereto. The State
Commission hi. 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;            B
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 authorities for remedial measures; help               c
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. [Para 8)
[468-B-E)                                                       D
      1.2. The provision contained in Section 10(1)(d) of the
Act 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           E
remedial measures. The 1993 Act has not entrusted the
State Commission with the prwer 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      F
or a court. 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. 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            G
been made. In the instant case, the order passed by the
State Commission was outsi~e 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         H
    460    SUPREME COURT REPORTS              [2010] 9 S.C.R.


A correcting that order went a step further and directed that
  DNA of the child as well as the appellant shall be
  conducted. [Para 8] [468-F-H; 469-A-D]

       2.1. In a matter where paternity of a child is in issue
  before the court, the use of DNA is an extremely delicate
8
  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
  ineans whenever the occasion requires. The other view
  is that the court must be reluctant in use of such
c 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
D though his mother and her spouse were living together
  during the time of conception. 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 court to reach the truth, the court must exercise
E 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
F 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
G of such test. [Para 13] [473-D-H; 474-A]

          2.2. 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, the State
    Commission has no authority, competence or power to
H
  BHABANI PRASAD JENA v. CONVENOR SECY.                 461.
        ORISSA S.COMN. FOR WOMEN

order DNA. Looking to the nature of proceedings with             A
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           B
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, that court will be competent to pass     c
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. [Para 14]
[474-C-F]

     Gautam Kundu v. State of West Bengal and Anr (1993)         D
3 SCC 418; Sharda v. Dharmpal (2003) 4 SCC 493; Banarsi
Dass v. Teeku Dutta & Anr (2005) 4 SCC 449; Ramkanya
Bai v. Bharatram (2010) 1 SCC 85 - referred to.

    Rayden's Law and Practice in Divorce and Family E
Matters (1983), Vol. I, p. 1054 - referred to.     I'


                    Case Law Reference:                  '6 ·:

    (1993) 3 sec 418         referred to          Para 9 ...
                                                                 F
    2003) 4 sec 493          referred to          Para 10
    (2005) 4 sec 449         referred to          Pa.r~ 11'.

    (2010) 1 sec 85          referred to          Para 12
  · CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.             G
6222-6223 of 2010.

    From the Judgment & Order dated 07.08.2009 of the High
Court of Orissa at Cuttack in WP(C) Nos. 8308 & 8725 of
2009.                                                            H
    462      SUPREME COURT REPORTS                   [2010] 9 S.C.R.


A       Swetaketu Mishra, P.P. Nayak, Janaranjan Das for the
    Appellant.

        Ranjan Mukherjee, Azim H. Laskare, Sachin Das,
    Shibashish Misra Abhijit Sengupta for the Respondents.
B         The Judgment of the Court was delivered by

          R.M. LODHA, J. 1. Leave granted.

          2. Two questions arise for consideration-first, the extent of
C   power of the State Commission for VVomen constituted u.nder
    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
D   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
E   (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
F   nullity and the said marriage has not been consurnmated. 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
G   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
H short, 'State Commission') alleging that she was married to the
   BHABANI PRASAD JENA v. CONVENOR SECY.                    463
  ORISSA S.COMN. FOR WOMEN [R.M. LODHA, J.]

appellant and due to torture meted out to her by the appellant      A
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            B
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            C
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.                                 D

            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
                                                                    E
                  office of ODO (Drawl and disbursing officer).

            3.     Delivery expenses of Smt. Nayak will be
                   borne by Sri Bhabani Prasad Jena as per
                   actual.
                                                                    F
            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.            G

     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 tl;ie child in the womb of
respondent no. 2 and there has been no relationship of husband      H
    464       SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A 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
B 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 prayea for justice
  as her delivery was expected on June 15, 2009. The vacation
  Judge treated the said letter as Nrit petition and on June 9,
C 2009 itself directed the Chief District Medical Officer,
  Bhubaneswer to admit the respondent no. 2 in the Capital
  Hospital at the cost of the 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
D 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
E 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.
F
       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
G reads thus:

          "S.10.- Functions of Commission-(1) The Commission
          shall perform all or any of the following functions, namely :

                (a) make indepth studies on-
H
 BHABANI PRASAD JENA v. CONVENOR SECY.                    465
ORISSA S.COMN. FOR WOMEN [R.M. LODHA, J.]
        (i)    the economic, educational and health              A
               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.                             B

        (ii)   condition in which women work in factories,
               establishments, con-struction sites and other
               similar situations,

               and recommend to the State Government on          C
               the basis of specific reports on improving the
               status of women in the said areas;

        (b)    compile information, form time to time, on
               instances of all offences against women in        D
               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         E
               sterilization or medical intervention that
               relates to child bearing or child l::>irth;

        (c)    will co-ordinate with the State Cell and
               District Cells for atrocities against women, if
               any for mobilization of public opinion in the     F
               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;                                        G

        (d)    receive complaints on-

               (i) atrocities on women and offences against
               women,
                                                                 H
    466      SUPREME COURT REPORTS                  [201 O] 9 S.C.R.


A                      (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,
B
                       (iv) rehabilitation of deserted and destitute
                       women and women forced into prostitution,

                       (v) atrocities on women in custody,
c                      and take up with authorities concerned for
                       appropriate remedial measures;

                       (e) assist, train and orient the non-
                       Government organization in the State in legal
D                      counseling of poor women and enabling such
                       women to get legal aid;

                       (f) insj)ect or cause to be inspected, a jail,
                       remand home, women's institution or other
E                      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
F                      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
G         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
H         recommendations of the Commission and the reasons for
  BHABANI PRASAD JENA v. CONVENOR SECY.                       467
 ORISSA S.COMN. FOR WOMEN [R.M. LODHA, J.]
                          -
    the non-acceptance, if any, of such recommendations.              A

          (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,          8
    namely:

            (a)   summoning and enforcing the attendance of
                  any person from any part of India and·
                  examining him on oath;
                                                                      c
            (b)   requiring the discovery and production of any
                  document;

                   (c) receiving evidence on affidavits;

            (d)   requisitioning any public record or copy            D
                  thereof from any Court or office;

            (e)    issuing commissions for the examination of
                   witness and documents; and
                                                                      E
                   (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       F
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        G
Cell 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 complainUs with the concerned
authorities for appropriate remedial measures. The State              H
    468     SUPREME COURT REPORTS                   (2010] 9 S.C.R.


A 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,
B 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,
c 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
0
  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
E 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 oe read
F 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
G 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
H
   BHABANI PRASAD JENA v. CONVENOR SECY.                        469
  ORISSA S.COMN. FOR WOMEN [R.M. LODHA, J.)

respondent no. 2 then referred to Section 10(3) and submitted           A
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        B
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               c
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               D
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              E
decisions of this Court dealing with the power of the Court in
directing DNA. In Gautam Kundu v. State of West Bengal and
Anr., 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          F
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 Dtvorce and              G
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
                                                                        H
    470      SUPREME COURT REPORTS                    (2010] 9 S.C.R.

A         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
B         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 that there is at least a 70 per cent chance that
c         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
D
          them is not the father with the irresistible inference that the
          other is the father."

    This Court then finally concluded, thus :

E         "(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.
F
          (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.
G
          (4) The court must carefully examine as to what would be
          the consequer.ce of ordering the blood test; whether it will
          have the effect of branding a child as a bastard a.·1d the
          mother as an unchaste woman.

H
   BHABANI PRASAD ·JENA v. CONVENOR SECY.                       471
  ORISSA S.COMN. FOR WOMEN [R.M. LODHA, J.]
     (5) No one can be compelled to give sample of blood for            A
     analysis."

        10. In Sharda v. Dharmpal, a three-Judge Bench was
concerned with the question whether a party to the divorce
proceedings can be compelled to a medical examination. That             B'
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, "Gautam Kundu is, therefore, not an authority for the         C
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,
                                                                        Di
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 :              E

     "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 2.1 of
                                                                        F
     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      G
     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., this Court was
                                                                        H
    472      SUPREME COURT REPORTS                   [2010) 9 S.C.R.


A 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
B 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, Gautam Kundu1 was noticed and it was held that
  even the result of a genuine DNA test may not be enough to
C 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
D         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
E         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
F         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
G         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."


H
  BHABANI PRASAD JENA v. CONVENOR SECY. · 473
 ORISSA S.COMN. FOR WOMEN [R.M. LODHA, J.]

It was emphasized that DNA test is not to be directed as a           A
matter of routine and only in deserving cases such a direction
can be given.

     12. Recently, in the case of Ramkanya Bai v. Bharatram
decided by the Bench of which one of us, R.M. Lodha, J. was          8
the member, the order of the High Court directing DNA of the
child at 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        C
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             D
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       E
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       F
privacy of a person not to submit himself forcibly to medical
examination and duty of the 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            G
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            H
    474     SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   '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, Gautam Kundu1 and Sharda2. In Gautam Kundu1 ,
  it has been laid down that courts in India cannot order blood
8
  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
C 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 sufficient material before the
  court. Obviously, therefore, any otder for DNA can be given by
  the court only if a strong prima facie case is made out for such
D 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 11\iith which the High Court was concerned, it has
  to be held that High Court exceeded its jurisdiction in passing
E 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
F 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.
G
         15. Consequently, the appeals are allowed; the order of
    the High Court dated August 7, 2009 and the order of the Orissa
    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
H
  BHABANI PRASAD JENA v. CONVENOR SECY.                  475
 ORISSA S.COMN. FOR WOMEN [R.M. LODHA, J.]
order. We clarify that our order shall not preclude the A
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 B
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.

B.B.B.                                      Appeals allowed.