G.R.Bhattacharjee, J. - (1.) This criminal revision is directed against the Order dated 1st February, 1992 passed by the learned Additional Chief Judicial Magistrate, 24-Parganas (South), Alipore in Misc. Case No, 143 of 1991 (T.R, 48/92). Smt. Shaswati Kundu, the O.P. herein filed the said case being case No. 143/91 for maintenance under section 125, Criminal Procedure Code for herself and her minor child against her husband Goutam Kundu, the petitioner herein. The marriage between the parties took place on 16th January 1990 and Smt. Shaswati Kundu gave birth to a daughter on 3rd January 1991. The husband disputed the paternity of the child and prayed before the Court below for blood group test of the child with a view to proving that it was somebody else through whom the wife conceived the child and consequently he was not liable to pay maintenance for the child which is not his child. The learned Court below by its impugned order dated the 1st February, 1992 rejected the prayer of the husband. It is against that order of rejection the petitioner husband has come up before this Court.
(2.) Curiously enough I find that neither the Court below considered a vital aspect of law involved in the matter nor did the learned Advocates appearing in the Court below raise the point there, namely, the question whether in law the investigation of paternity of child by, blood group test can at all be embarked upon in view of the specific provision of section 112 of the Indian Evidence Act, 1872. The said section runs thus : "112. Birth during marriage, conclusive proof of legitimacy - The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be 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 any time when he could have been begotten." Clear enough, section 112 of the Evidence Act itself stands as a stumbling block in the way of the husband getting his paternity of the child disproved through blood group test. Mr. A. P. Chatterjee appearing for the petitioner husband submitted that science has by now advanced to a considerable extent and through scientific test of blood group of the child and the man it is possible to resolve the dispute of paternity at least in certain cases. He further submitted that if the result of the blood group test shows that the man is not the father of the child the result is a certainty, but if however the test shows that the man be the father of the child the uncertainty however will continue to remain. In other words, blood group test may absolve some one from paternity with certitude, if the test-answers that way, but where however, the test answers the alternative way, namely that the man may be the father of the child the vice of uncertainty however remains unlifted. Mr. Chatterjee submitted that the petitioner husband ill this case should not be debarred from having recourse to necessary blood group test so that in case the result of the test is negative it will be scientifically established that he is not the biological father of the child and in that case there will be no question of his paying maintenance for the child. Mr. Chatterjee in this connection also relied upon two English decisions reported in (1968) 1 All England Law Reports 20 (Re: L) and (1968)2 All England Law Reports 1023 (B.R.B. v. I.B.). He referred in particular to the judgment delivered by Lord Denning, M.R. in the said cases.
(3.) Before I proceed to discuss the said two English decisions cited by Mr. Chatterjee, I would advert to section 4 of the Indian Evidence Act for appreciating the meaning of the expression conclusive proof as the term has been used in section 112 of the Act as referred to earlier. In section 4 conclusive proof has been defined thus: -"When one fact is declared by this Act to be conclusive proof of another, the Court shall on proof of the fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it". It is thus, evident that the legislature has made it rigidly clear that in respect of anything which is regarded as proved on the strength of the definition of 'conclusive proof' no evidence can be given for the purpose of disproving it. Therefore if it is proved that there was marriage between the parties and the child was born during the continuance of that marriage it become a 'conclusive proof' that the child is the legitimate child of the husband and no evidence, be it in the form of a scientific devise like blood group test or otherwise, can be allowed to be given to disprove that the husband is the father of the child except in the manner as particularly provided in section 112. To understand the full import of the meaning of the term 'conclusive proof' as given in section 4 of the Evidence Act, we may profitably look to two' other provisions regarding the terms 'may' presume' and 'shall presume' as contained in the said section. In respect of the term 'may presume' it has, been provided therein that whenever it is provided by the Evidence Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it. Regarding the term 'shall presume' it has been provided therein that whenever it is directed by the Evidence Act that the Court sha1l presume a fact, it shall regard such fact as proved unless and until it is disproved. We thus find that in respect of a fact which the Court 'may' presume it is open to the Court to regard: such fact as proved, unless and until it is disproved, but the Court also has an option not to regard such fact as proved on presumption and rather to call for proof of it. But in respect of a fact which the Court 'shall presume' the Court has no option to call for proof of it and has to accept such fact as proved unless and until it is disproved. [n both the cases of 'may presume' and 'shall presume' it is however open to the party adversely affected by such presumption to adduce evidence to disprove the presumed fact but in case of a fact which the Court has to regard as conclusively proved by reason of the meaning attributed to the term 'conclusive proof' by section 4 of the Evidence Act, it is not open either to the Court or to the party adversely affected by such conclusive presumption to accept or lead evidence in disproof of that conclusive presumption.;