HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.1651 of 2011 ORDER: This Criminal Petition is filed by the petitioner, under Sections 397 and 401 of Cr.P.C., seeking to set aside the order dated 5.8.2011 made in M.P.No.1726 of 2011 in M.C.No.35 of 2010 on the file of the Addl. Judicial Magistrate of First Class, Tuni, whereby the learned Magistrate dismissed the petition filed by the petitioner with a prayer to send the 3rd respondent-child herein for DNA test to know its actual paternity. The brief facts of the case are as follows: Respondent Nos. 2 and 3 herein filed a maintenance case in M.C.No.35 of 2010 on the file of the Addl. Judicial Magistrate of First Class, Tuni, against the petitioner herein seeking maintenance. During pendency of the maintenance case, the petitioner filed M.P.No.1726 of 2011 before the trial Court seeking to send the child for DNA test to know its paternity, contending that the child was not born through him and the paternity of the child is in question. The 2nd respondent filed a counter denying the allegations made in the affidavit filed in support of the petition. Having heard both sides and perused the record, the learned Magistrate dismissed the petition, by an order, dated 5.8.2011. The same is under challenge in this revision. Learned counsel for the petitioner has submitted that the 2nd respondent admitted before her mother-in-law that the child was not born to her through the petitioner and she has illicit intimacy with one Vijay. Hence, no prejudice will be caused to the 2nd respondent, if the child is sent for DNA test. This Court perused the record. The learned Magistrate dismissed the petition relying on Section 112 of the Indian Evidence Act, which runs as follows: “Birth during marriage, conclusive proof of legitimacy:- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eight days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” and, further, there is a presumption clause, when the parties lived together and, if there is no evidence to show that they do not have any access between them during the said period, the Court can take a different view. Admittedly, the marriage took place on 31.08.2007 and the 2nd respondent gave birth to 3rd respondent on 05.11.2008. In this type of situation, the Apex Court categorically passed orders that DNA test cannot rebut the conclusive proof as envisaged under Section 112 of the Indian Evidence Act. In this connection, the learned counsel relied on a latest decision in Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women and another[1] wherein the Apex Court held as follows: “In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the 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 the 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. Some times 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 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 test is eminently needed. DNA test 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. There is no conflict in the two decisions of this Court, namely, Goutam Kundu(1) and Sharda(2). In Goutam Kundu(1) 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 the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda(2) 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 sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course.” In the light of the above, this Court is of the view that the present revision is liable to be dismissed. Further, it is admitted by both parties that even if the fact that the paternity in question is decided in favour of the petitioner, that cannot be a ground to refuse the maintenance, in view of the decision rendered by the Apex Court wherein it is observed that for the mistakes committed by parents, a child should not be allowed to suffer. Accordingly, the Criminal Revision Case is dismissed. However, in the facts and circumstances of the case, the trial Court is hereby directed to dispose of the maintenance case, without being influenced by this order and this order will not come in the way of the petitioner to file any fresh application before any other Court. Miscellaneous petitions if any, filed shall stand closed. _________________ RAJA ELANGO, J 12th September, 2011 cbs HON’BLE SRI JUSTICE RAJA ELANGO Crl.R.C.No.1651 of 2011 (Dismissed) 12th September, 2011 cbs [1] (2010) 8 SCC 633