REPORTABLE

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.

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  

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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.

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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  

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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 :

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(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,  form  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,

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(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.

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(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  

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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  

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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.  

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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.  

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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

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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.”

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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

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“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

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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  

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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  

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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  

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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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