IN THE HON’BLE SUPREME COURT OF INDIANA

(CRIMINAL APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. __________ of 2019

In the matter of:

Akash Khanna Appellant

V.

Rukmimi Dutta Respondent

Memorial on behalf of the Appellant

1
 TABLE OF CONTENTS

Page No

➢ List of Abbreviation 03

➢ Index of Authorities 04

➢ Statement of Jurisdiction 06

➢ Statement of Facts 07

➢ Dispute 08

➢ Statement of Issues 10

➢ Summary of Arguments 11

➢ Advanced Arguments 14

➢ Prayer 23

2
 LIST OF ABBREVIATIONS

A.I.R All India Reporter

Art. Article

Crl. Criminal

Cr.P.C Criminal Procedure Code

Hon’ble Honourable

HC High Court

SC Supreme Court

SCC Supreme Court Cases

Sr. Senior

Sec Section

SLP Special Leave Petition

& And

Ors. Others

U.O.I Union of India

u/s Under section

v. / vs. Versus

Misc. Miscellaneous

3
INDEX OF AUTHORITIES

CASE LAWS

1. Shamlal vs. Sanjeev Kumar

2. Navtej Singh Johar & Ors vs. U.O.I
3. State of New York vs. Joseph Castro
4. Patangi Balarama Venkata Ganesh vs. State of Andra Pradesh
5. Gautam Gundu vs. State of West Bengal
6. Sharda vs. Dharmpal
7. Nadlal Wasudeo Badwaik vs. Lata Nandlal Badwaik
8. Smt. Kanti Devi vs. Poshi Ram
9. Banarsi Dass vs. Teeku Dutta
10. Kanchan Bedi vs. Gurpreet Singh Bedi
11. Bommi and another vs. Munirathinam

DYNAMIC LINKS

1. www.legalserviceindia.com
2. https://blog.ipleaders.in
3. www.legallyindia.com
4. http://thelawbrigade.com
5. www.latestlaws.com
6. www.casemine.com

BOOKS REFERENCE

1. The Criminal Procedure Code – R.V. Kelkar

2. The Law of Evidence – Ratanlal
3. Constitutional Law of India – V.N Pandey
4. Commentaries on Indian Evidence Act – R.D. Agarwal

4
STATUTES INVOLVED

1. Indian Evidence Act,1872

2. Criminal Procedure Code, 1973
3. Indian Constitution, 1950
4. The Paternity Act, 2012

PARTIES STAND AT

1) Appellant for the purpose of this memorandum shall stand for Akash khanna
2) Respondent for the purpose of this memorandum shall stand for Rukmini Dutta

5
STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indiana has jurisdiction to hear the instant matter under Article

136 of the Constitution of Indiana read as

Article 136 – Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant

special leave to appeal from any judgement, decree, determination, sentence or order in

any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgement, determination, sentence or order passed

or made by any court or tribunal constituted by or under any law relating to the armed

forces.

A.136 empowers the Supreme Court to grant, in its discretion special leave to appeal from any

judgement, decree, determination, sentence or order in any cause or matter passed or made by any

court or tribunal in the territory of India. This is called Special Leave Petition

It confers a special jurisdiction on Supreme Court. Power of Supreme Court is unaffected by

Article 132, 133, 134, 134A of the Constitution.

6
STATEMENT OF FACTS

BACKGROUND

Appellant & Petitioner: Mr. Akash Khanna

Mr. Akash Khanna is a conservative male who was brought up with all the customary beliefs and

traditions in the State of Indiana. For generations, Indiana has the prevailing tradition of Joint

family system. Since he belonged to the member of joint family system, it is no wonder that he

was also ended up by giving his consent to arranged marriage.

Respondent: Mrs. Rukmini Dutta

Mrs. Rukmani Dutta was married on 20th January 2000 according to Hindu Rites and Customs &

became the legally wedded wife of Mr. Akash Khanna. They lived together happily for some time.

The Respondent always had an inclination towards education and so she wished to complete her

Higher Secondary Education. She told her desire to her in-laws and husband and left the

matrimonial home to reside with her parents inorder to prepare for HSE which commenced on

3.4.2000 and continued upto 2.5.2000.

In the month of April 2000, she conceived. On coming to know that she was pregnant she informed

the same to her parents, husband and In-laws. But her husband’s family did not want her to beget

a child. Because she left her matrimonial house for a month, immediately after few months from

marriage, it gave them enough room to suspect her chasity. So they vehemently insisted her to

terminate her pregnancy.

7
She came back to her Matrimonial house during Durga Pooja in the month of October 2000. But

since they hesitated and vehemently opposed to her pregnancy, she again left to her parents house.

A female child was born on 15th January 2001. They refused to accept herself and her child.

THE DISPUTE

By the time, the Respondent felt difficult to meet out the basic amenities to maintain herself and

the child. So she filed a petition under section 125 of Cr.P.C before the Learned Chief Judicial

Magistrate, Alipore in Misc.Case.No 572 of 2002 both for herself and the child’s maintenance. By

an order dated 17.9.2002 which was passed ex-parte and the Judge awarded a sum of Rs.3000 per

month to the mother and Rs.2000 to the child.

The Petitioner is aggrieved by the Chief Judicial Magistrate Order. He believed that he is not the

father of the child and if proved he is not liable to pay maintenance. His contention is that blood

group is the only test to determine the question of disputed paternity. So he filed Cr;.Misc.Case.No

123 of 2002 contending the paternity of the child by seeking for blood group test. The application

was dismissed on two grounds.

1) There were other methods in the Evidence Act to disprove the paternity.

2) Moreover it is settled law that medical test cannot be conclusive of paternity.

Aggrieved by this order, a revision was preferred before the High Court. Dismissing the revision

it was held by the HC that Sec 112 of The Evidence Act 1872 says where during the continuance

of valid marriage if a child is born that is the conclusive proof of the legitimacy. Section 112 read

with section 4 of the said Act debars evidence except incases of non-access for disproving the

presumption of legitimacy and paternity. This section is the stumbling block in the way of the

petitioner. Section 4 of the Act lays down three degrees of presumption – ‘May Presume’, ‘Shall

8
Presume’ and ‘Conclusive Proof’. It must be noted that section 112 of the Act uses Conclusive

Proof. Therefore if the two requirements of section 112 are proven, it shall be considered as

conclusive proof of legitimacy, which means that further evidence to disprove said fact may not

be given. The legitimacy of such a child cannot be rebutted unless non-access can be proved. This

creates problem for the party disputing the paternity of the child. But under Sec.2 (5) of The

Paternity Act 2012 states that ‘After DNA identification Profiling, if husband not found a

biological father, then he is not liable to pay any expenses of the child.

In this case this section debars the petitioner from determining his paternity and he contends that

he is being unjustly accountable by this section as it deals with the presumption of moral behavior

alone.

Finally aggrieved by the order of the Highcourt, the petitioner approached the supreme court with

the prima facie contention that the blood group test is the only useful test to determine the question

of disputed paternity.

STATEMENT OF ISSUES

9
1) Whether Section 112 of Indian Evidence Act which is based on presumptions of

morality can be a deciding factor for determining paternity?

2) Whether the right of the petitioner for a fair trial is disallowed?

3) Whether advanced scientific methods like DNA can be utilized for establishing

paternity and state its evidentiary value?

4) Whether scientific techniques hinders Right to Privacy under Article 21 and Right

against Self Incrimination under Article 20(3)?

5) Can Section 112 of Indian Evidence Act be amended? If so by adding what provisions

it can be amended?

10
SUMMARY OF ARGUMENTS

1) Whether Section 112 of Indian Evidence Act which is based on presumptions of

morality can be a deciding factor for determining paternity?

Morality has no place in law. Law may reflect the moral principles of the time, but

it cannot be solely based on them. Law is a mechanism which governs society through

rules and sanctions. These rules facilitate the peaceful existence of society by maintaining

law and order. Morality on the other hand is a subjective concept about ‘good’ and ‘bad’

which differs from person to person. Maternity is always certain and Paternity is a matter

of inferences. Only a Social father can be determined under Sec.112 of Indian Evidence

Act which presumes birth during marriage as a conclusive proof of legitimacy. But a

Biological father cannot be determined exactly by this presumption. So this section cannot

be solely relied for determining paternity.

2) Whether the right of the petitioner for a fair trial is disallowed?

Section 112 read with section 4 acts as a stumbling block for the petitioner for

availing blood test to determine his paternity. A block itself represents that there is no way

to go beyond the presumptions of conclusive proof. The only way to rebut the legitimacy

is to prove non-access. It could be proved either by showing that the man was away in

someother city or he was impotent when the child could have been conceived. If the

husband fails to prove any of these he shall be deemed to be father of the child born. This

creates a legal lacuna with respect to cases where paternity may be disputed even when the

parties had access to each other. For example, in cases of adultery, a party with legitimate

11
case trying to dispute paternity will find themselves without remedy due to inability to

produce evidence. The exception to this law ie non-access is not wide enough to cover all

possible situations under the ambit of this law. Because of this exception, the right of the

petitioner for a fair trial is disallowed.

3) Whether advanced scientific methods like DNA can be utilized for establishing

paternity and state its evidentiary value?

DNA Technology comes in handy as a latest tool of forensic science, emanating

from genetic science. This test is the only method to establish the legitimacy of the child

and solve the dispute with respect to paternity of the child. DNA Profiling is fool-proof. It

provides absolute certainty rather than a probable exclusion as in other systems. There is

no specific legislation which can provide specific guidelines for the court. The amendment

of Cr.P.C (Amendment Act) 2005 has brought two new sections which authorizes the

investigating officer to collect DNA sample from the body of the accused and the rape

victim. DNA Tests are conclusive evidence admissible under the Indian Legal System.

4) Whether scientific techniques hinders Right to Privacy under Article 21 and Right

against Self Incrimination under Article 20(3)?

The introduction of DNA Technology had faced extensive criticism and have been

said to violate Art.21 and Art.20(3) of the Indian Constitution. But the Apex court held that

a fundamental right must be subject to restriction on the basis of compelling public interest.

Thus Right to life and liberty, which includes privacy, is not absolute. Self incrimination

means conveying information based upon personal knowledge of the person giving the

12
information. Since medical tests which involve giving blood do not involve any exchange

of ‘personal’ knowledge and are a mechanical process, they do not violate Art.20(3).

5) Can Section 112 of Indian Evidence Act be amended? If so by adding what

provisions it can be amended?

Section 112 of Indian Evidence Act can be amended as Roscoe Pound stated that

Law must be stable but not stand still. It can be amended as per the The Law Commision

report. The Law commission in its 185th Report, proposed certain amendments to section

112 which are yet to be given force. It proposed that in case of blood tests, there can be

evidence by way of DNA tests to prove that a person is not the father. Blood group antigens,

serum proteins, erythrocyte enzymes and salivary proteins are of importance in

ascertaining the parentage with certainity. Also if a person doesn’t give his valid consent

for DNA test, then adverse inference can be drawn.

ADVANCED ARGUMENTS

13
1) Whether Section 112 of Indian Evidence Act which is based on presumptions of

morality can be a deciding factor for determining paternity?

Section 112 of the Indian Evidence Act, 1872 relates to the legitimacy of a child

born during wedlock. The law presumes that if a child is “born during the continuance of

a valid marriage between his mother and any man, or within two hundred and eighty (280)

days after its dissolution, the mother remaining unmarried, it is conclusive proof of its

legitimacy unless it can be proven that the parties to the marriage did not have any access

to one another. The legislative spirit behind this section seeks to establish that any child

born during a valid marriage must be legitimate. Therefore, section 112 is based on the

presumption of public morality and public policy1.

Justice A.M Khanwilkar stated that “Social morality cannot violate the rights of even one

single individual”.2 Morality has no place in Law. Law may reflect the moral principles of

the time, but it cannot be solely based on them. Law is a mechanism which governs society

through rules and sanctions. These rules facilitate the peaceful existence of society by

maintaining law and order. Morality on the other hand, is a subjective concept about ‘good’

and ‘bad’ which differs from person to person. Some may argue that law is the protection

of the ‘good’ and punishment of the ‘bad’. But this is a very narrow understanding. The

Law does indeed protect the good and punish the bad, but not always.

1. Shamlal vs. Sanjeev Kumar (2009) 12 SCC 454.

2. Navtej Singh Johar & Ors vs. U.O.I ; W.P (crl) No.76 of 2016

For the simple reason that one cannot define this ‘good’ or ‘bad’. What may be good for

some may be bad for others. Moral considerations cannot be put above the rights of people.

Maternity is always certain and Paternity is a matter of inferences. Only a Social father can

14
be determined under Sec.112 of Indian Evidence Act which presumes birth during marriage

as a conclusive proof of legitimacy. But a Biological father cannot be determined exactly

by this presumption. So this section cannot be solely relied for determining paternity.

2) Whether the right of the petitioner for a fair trial is disallowed?

The concept of Fair trial is based on the basic ideology that State and its agencies

have the duty to bring the offenders before the law. In their battle against crime and

delinquency, State and its officers cannot on any account forsake the decency of State

behaviour and have recourse to extra-legal methods for the sake of detection of crime.

For how they insist on good behaviour from others when their own behavior is

blameworthy, unjust and illegal? Therefore the procedure adopted by the State ust be

just, fair and reasonable. The Indian courts have recognized that the primary object is

to ensure a fair trial of accused persons. Human life should be valued and person

accused of any offense should not be punished unless he has been given a fair trial and

his guilt has been proved in such trial.

Section 112 read with section 4 acts as a stumbling block for the petitioner for availing

blood test to determine his paternity. A block itself represents that there is no way to

go beyond the presumptions of conclusive proof. The only way to rebut the legitimacy

is to prove non-access. It could be proved either by showing that the man was away in

someother city or he was impotent when the child could have been conceived. If the

husband fails to prove any of these he shall be deemed to be father of the child born.

This creates a legal lacuna with respect to cases where paternity may be disputed even

when the parties had access to each other. For example, in cases of adultery, a party

15
 with legitimate case trying to dispute paternity will find themselves without remedy

due to inability to produce evidence. The exception to this law ie non-access is not wide

enough to cover all possible situations under the ambit of this law. Because of this

exception, the right of the petitioner for a fair trial is disallowed. This section violates

the right of the party disputing paternity to a fair trial by not allowing them to present

evidence for the same. Moral considerations cannot be put above the rights of people

or fairness in the justice system.

3) Whether advanced scientific methods like DNA can be utilized for establishing

paternity and state its evidentiary value?

In earlier days, Blood test is an important piece of evidence to determine the

paternity of the child. Though by a blood test it cannot positively establish the paternity

of the child, it can certainly exclude a certain individual as the father of the child.

Therefore, while the negative finding in a blood test is definite, the positive finding

only indicates a possibility. At the beginning of the century scientists established that

human blood had certain characteristics which could be genetically transmitted. The

first recognized 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 individual is the father on the basis of comparing

blood groups only.

As regards blood groups, the 69th Law commission report gives the following example.

As a scientific principle, a child will inherit the blood group of one or other of his

16
parents. If O is the blood group of the mother and A is that of a child, a person with

blood group B cannot be the father.

The Evidence Act came into field in the year 1872, when there was no appreciable

development or progress in the scientific field, especially to find out the classification

of genes, its effect and co-relation of the same with genetically identical person. Now

the medical field is very much advanced and by having blood alone, the entire body

system could be scanned to detect the defect. DNA technology comes in handy as a

latest tool of forensic science, emanating from genetic science. The courts readily

admits the scientific evidences n case of theft, rape, murder. There is a strong

presumption that if a child was born during continuance of marriage, it is immaterial,

how soon after the marriage, it was born. Moreover, the courts had reached the

conclusion, regarding the parenthood, only because of the fact that the wife and

husband were living in a same room. Mere living together, does not conclusively decide

that they had intercourse. This is an issue of love, affection and basic understanding

between each other. There also arises the possibility that one of the spouse would be

eager for a child whereas the other does not feel any need of the child. And if under

such circumstances a child is born, then the medical reasoning should be brought into

the scenario, to determine the parenthood of that child.

Also section 112 states a time period of 280 days but even the medical experts do not

have any firm stand on this point, then from where did the legal jurists brought the

calculated numbers of 280 days. 3 So the final solution can be the DNA mapping and it

can be effectively used to establish the paternity.

17
 The Supreme Court of Newyork ordered the holding of pre-trial to determine the

admissibility of the new DNA4 scientific evidence.5

In Kerala, a case concerning paternity issue was settled by recourse to the DNA Test.

The Chief Judicial Magistrate’s Court, Tellicherry directed both the petitioner

(Vilasine) and the respondent (Kuhini Raman) to undergo DNA finger-printing test to

ascertain the paterninty of the child. It is a conclusive evidence under the Indian Legal

system.6 Sec.53 of Cr.P.C authorizes a police officer to get the assistance of a medical

practioner in good faith for the purpose of investigation. The amendment of Cr.P.C

(Amendment) Act,2005 has brought two sections which authorizes the investigating

officer to collect DNA samples in terms of rape cases (sec.53A). By this amendment

new explanation includes within its ambit examination of blood, blood stains, semen,

sputum, swabs, sweat, hair samples and finger nails by the use of modern

techniques.Section 45 of Indian Evidence Act deals with the opinion of the expert. So

DNA Testing is admissible in Indian Legal System

3. Modi’s Medical Jurisprudence and Toxicology under the heading ‘The Maximum Period of Pregnancy’
various periods have been mentioned starting from 315 days to 349 days.
4. State of New York vs. Joseph Castro 1989 US Supreme court.
5. DNA means Dioxy Ribo Neucleicated Test.
6. Patangi Balarama Venkata Ganesh vs. State of Andra Pradesh, 2003crlj 4508(AP)
4) Whether scientific techniques hinders Right to Privacy under Article 21 and Right

against Self Incrimination under Article 20(3)?

18
 The introduction of the DNA technology has posed serious challenge to some legal

and fundamental rights of an individual such as “Right to Privacy’ and “Right against

Self Incrimination” under Art. 21 and 20(3) respectively. The refusal of Supreme Court

to dismiss the Delhi High Court’s decision ordering veteran congress leader N.D.

Tiwari to undergo the DNA test is very important from the viewpoint of admissibility

of such evidence. In this case, Rohit Shekhar has claimed to be the biological son of

N.D Tiwari but the congress leader was reluctant to undergo such test stating that it

would be the violation of his Right to Privacy and would cause him public humiliation.

But SC rejected this point stating when the result of the test would not be revealed to

anyone and it would under a sealed envelope, there is no point of getting humiliated.

In matters considering issue of Paternity Gautam Gundu vs. State of West Bengal 7, the

apex court, inter alia, held as follows:

1) The courts in India cannot order blood test as matter of course

2) There must be a strong prima facie case in that the husband must establish non-

access inorder to dispel arising under Sec. 112 of the Evidence Act.

3) No one can be compelled to give sample of blood for analysis.

7. Gautam Gundu vs. State of West Bengal (1993) 3 SCC 418

However subsequently a full bench of the Supreme Court in Sharda vs. Dharmpal 8 Considered the

power of a matrimonial court to order such test and clarified that Gautam Kundu (supra) is not an

authority for the preposition that under no circumstances the court cand direct the blood tests be

conducted. The court after hefty discussion summed up three significant conclusions
19
 1) A matrimonial court has the power to order a person to undergo medical test.

2) Passing of such an order 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.

In Nadlal Wasudeo Badwaik vs. Lata Nandlal Badwaik & Anr 9 , the court gives priority to DNA

test under Sec.45 of the Indian Evidence Act 1872 over the legitimate presumption under Sec.112

of the said above Act. It is really a welcoming step and by that way our SC has enforced the

fundamental duties enunciated under Art.51A(h) and (j) of Part IV A of the Indian Constitution.

Self incrimination means conveying information based upon personal knowledge of the person

giving the information. Since medical tests which involve giving blood do not involve any

exchange of ‘personal’ knowledge and are a mechanical process, they do not violate Art.20(3).

8. Sharda vs. Dharmpal (2003) 4 SCC 493

9. Nadlal Wasudeo Badwaik vs. Lata Nandlal Badwaik & Anr (2014) 2 SCC 576

5. Can Section 112 of Indian Evidence Act be amended? If so by adding what

provisions it can be amended?

The Evidence Act came into field in the year 1872, when there was no appreciable

development or progress in the scientific field, especially to find out the classification of genes, its

effect and co-relation of the same with genetically identical person. Now the medical field is very

20
much advanced and by having blood alone, the entire body system could be scanned to detect the

defect. DNA technology comes in handy as a latest tool of forensic science, emanating from

genetic science.

In view of the provision of Sec.112 of the Indian Evidence Act, there is no scope of permitting the

husband to avail of blood test for dislodging the presumption of legitimacy and paternity arising

out of this section. The apex court in yet another case Smt. Kanti Devi vs. Poshi Ram10 while

accepting the accuracy of the test held that result of genuine DNA test is said to be scientifically

true but that is not enough to escape from conclusiveness of Sec.112 of the Indian Evidnece Act.

It was further observed therein that this may look hard from the point of view of the father, but in

such cases the law leans in favour of the innocent child. Thus there is a serious lacuna in the law

and DNA evidence should be made a part of the statute book so as to conclusively and accurately

prove the parentage of the child.

It was held that DNA tests is not to be directed as a matter of routine and only in deserving cases

such direction can be given.11 There are other courts which deviated from the above observation.

10. Smt. Kanti Devi vs. Poshi Ram AIR 2001 SC 2226
11. Banarsi Dass vs. Teeku Dutta (2005) 4 SCC 449

The Delhi High Court ordered DNA test for determination of paternity of a child whose father

disputed his paternity.12 In Bommi and another vs. Munirathinam13, the Madras High Court held

that advancement in science and technology must be used instead of merely relying upon

presumption under Sec.112 of the Indian Evidence Act, as such technological advancement was

not available at the time of enacting the Evidence Act. The presumption only identifies a social

father and not a biological father. DNA tests by the experts may not only reveal the truth but may

21
also remove the misunderstanding between the husband and wife and help them in reconciliation.

So an amendment to Sec.112 of the Indian Evidence Act is very much needed.

It can be amended with the following provisions:

1. The refusal of the parties to undergo the DNA test ordered by the Court, may conclusively

presume that person is the parent of the child.

2. The Court may order DNA test, where it is necessary to arrive at the truth relating to

paternity of the child and in cases where it is eminently needed for just decision.

The Law commission in its 185th Report, proposed certain amendments to section 112

which are yet to be given force. It proposed that in case of blood tests, there can be evidence

by way of DNA tests to prove that a person is not the father. Blood group antigens, serum

proteins, erythrocyte enzymes and salivary proteins are of importance in ascertaining the

parentage with certainity. Also if a person doesn’t give his valid consent for DNA test, then

adverse inference can be drawn

12. Kanchan Bedi vs. Gurpreet Singh Bedi AIR 2006 Bom 140
13. Bommi and another vs. Munirathinam 2004(5) CTC 182:(2004)3 MLJ 537

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble Court

be pleased to:

22
1. Hon’ble Court may be pleased to grant SLP

2. Order the Blood Test

3. Quash the lower court orders

4. Recommend the Law Commision 185th report to be implemented

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSEL FOR THE PETITIONER

23