1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4540 OF 2009 Balbhim Waghambar Patil Age 39 years, Occ. Agri. R/o. Umardara, Tq. Shirur-Anantpal, District Latur. .. petitioners Versus 1] Sow. Banaras Balbhim Patil Age 40 years, Occ. Household, R/o. Sarwadi, Tq. Nilanga, District Latur. 2] Vaibhav Banaras @ Nandini Patil Age 19 years, Occ. Agri, R/o. As above. .. Respondent. --- Mr. Anand V. Patil, Advocate for petitioner. CORAM : B.R. GAVAI,J. DATE : 12th November, 2009. ORAL ORDER :- 1] Though duly served with the notice for final disposal of the petition, none of the respondents has chosen to appear. 2] Rule. Rule made returnable forthwith. 3] By way of present petition, the petitioner challenges the order dated 8th April, 2009 vide which the application filed by the present petitioner for referring the petitioner and the respondent No.2 for DNA test is rejected. 2 4] The petitioner/plaintiff has filed a suit for declaration that the respondent No.2 is not begotten to the respondent No.1 from the present petitioner. It is the case of the petitioner that after the petitioner married with the respondent No.1 and she came to reside at the petitioner’s house, she refused to have sexual relations with him. It is his case that when this fact was brought to the notice of the parents of the petitioner as well as the defendant No.1, it was stated that since the couple was newly married, the defendant No.1 was feeling shy. It is further the case that after some time, the respondent No.1 came to reside with the petitioner, she had some stomach ailment and, therefore, was taken to the medical practitioner. It is the case of the petitioner that all the 3 Doctors, to whom the respondent No.1 referred, opined that the respondent No.1 was pregnant with pregnancy of 30 weeks. It is further his case that it was therefore discovered that the defendant No.1 had conceived prior to her marriage with the petitioner. It is further his case that, therefore, she was taken back to her maternal home, wherein, her relatives agreed that she had relations with one Shivaji Manale prior to her marriage. It is further the case that after the defendant No.2 was born, both the defendants were residing with the parents and brother of defendant No.1. In this background, the petitioner has sought for a declaration that the defendant No.2 is not the son of the petitioner. 5] The suit of the plaintiff was resisted by the defendants. The allegations are denied. The petitioner, therefore, filed an application for referring the defendant No.2 and the petitioner for DNA test. The said 3 application has been rejected by the learned trial court on the ground that there is a presumption regarding the legitimacy of the son being born to the petitioner since he was born during the wedlock, in view of Section 112 of the Indian Evidence Act. 6] Perusal of Section 112 of the Evidence Act would reveal that the said presumption is rebuttable. It is further to be noted that in the present case, the defendants have themselves stated that they are willing to undergo the medical test, if the plaintiff agrees to pay the medical expenses. 7] In that view of the matter, I find that in order to ascertain the truth regarding the allegations and counter allegations, it would be in the interest of justice to allow the application filed by the petitioner. 8] The impugned order is, therefore, quashed and set aside. The application filed by the present petitioner for referring the plaintiff and the defendant No.2 for DNA test and for obtaining the report, is allowed. It is, however, made clear that the expenses for the said test would be borne by the petitioner. Rule made absolute in above terms, there shall be no orders as to costs. [B.R. GAVAI,J.] Grt/- 4