BHABANI PRASAD JENA v. CONVENOR SECRETARY, ORISSA STATE COMMISSION

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. ORISSA S.COMN. FOR WOMEN 459 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; 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) B 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] 8

2.1. 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 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 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 E 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. ORISSA S.COMN. FOR WOMEN

#461. 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