Friday, January 24, 2014

SC resolved the conflict between the conclusive proof envisaged under laws and the scientific proof accepted by the world.

The Supreme Court of India has recently resolved the sensitive dispute regading what kind of proof should be accepted in admeasuring the Justice, by observing in the matters of Criminal Appeal No.24 of 2014 that-" The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former"

Supreme Court of India endorses again the accuracy of DNA test to determine paternity dispute of a child

Recently while disposing Criminal Appeal No.24 of 2014 in the matters of Nandalal v/s Lata, the Apex Court has again endorsed the accuracy of DNA test for the determination of the issue of paternity, when the husband and wife lived to gather or had opportunities to access. The Hon'ble Supreme Court has observed that "DNA (Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. When two unrelated people possessing the same DNA pattern have been compared, the chances of complete similarity are 1 in 30 billion to 300 billion. Given that the Earth’s population is about 5 billion, this test shall have accurate result. It has been recognized by this Court in the case of Kamti Devi (supra) that the result of a genuine DNA test is scientifically accurate."

Thursday, January 16, 2014

SC: "The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory"

While adjudicating with CIVIL APPEAL NO. 65 OF 2014 lodged by appellant SANDEEP THAPAR, the Hon'ble Supreme Court of India has made an important landmark observation recently about the provisions to prevent delay in proceedings and its corresponding procedural laws that " The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time.Though the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance.The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away.

Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied. Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.

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