JUDGMENT

MOHAN, J.:—Leave granted.

2. The appellant herein was married to second respondent on 16th January, 1990 according to Hindu Rites and Customs. They lived together for sometime until second respondent left the matrimonial home to reside with her parents in order to prepare for Higher Secondary Examination which commenced on 5-4-90 and continued up to 10-5-90. In the month of April, 1990 she conceived, on coming to know that she was pregnant, the appellant and the family members did not want her to beget a child. Therefore she was forced to undergo abortion which was refused by the second respondent. During the stay she was meted out cruel treatment both physically and mentally. She came back to the matrimonial home during Durga Pooja in the month of October, 1990. A female child was born on 3-1-91. She filed a petition under S. 125, Cr.P.C. before the learned Chief Judicial Magistrate, Alipore in Misc. Case No. 143 of 1991 both for herself and the child. By an order dated 14-8-91 which was passed ex parte he awarded a sum of Rs. 300/- per mensem to the mother and Rs. 200/- to the child. Against that order, he moved a revision to the High Court. That revision is pending as 1837 of 1991. Thereafter the petitioner filed a Crl. Misc. Case No. 143 of 1991 for blood group test of the second respondent and the child.

3. In that proceeding the petitioner herein disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. According to him if that could be established he would not be liable to pay maintenance. That application was dismissed on two grounds: (i) there were other methods in the Evidence Act to disprove the paternity; (ii) moreover it is settled law that medical test cannot be conclusive of paternity.

4. Aggrieved by this order, a revision was preferred before the High Court. Dismissing the revision it was held that S. 112 of the Evidence Act says where during the continuance of valid marriage if a child is born that is a conclusive proof about the legitimacy. This section would constitute a stumbling block in the way of the petitioner getting his paternity disproved by blood group test.

5. The English law permitting blood test for determining the paternity of legitimacy could not be applied in view of S. 112 of the Evidence Act. Therefore it must be concluded that S. 112 read with S. 4 of the said Act debars evidence except in cases of non-access for disproving the presumption of legitimacy and paternity.

6. It is the contention of Mr. Ashok Sen, learned counsel for the appellant that the only way for the father to disprove the paternity is by blood group test. Having regard to the development of medical jurisprudence to deny that request to the appellant will be unreasonable. As a matter of fact, in England, this is commonly resorted to as it will leave no room for doubt. In (1968) 1 All England Reports p. 20, Re. L. it was held that even without the consent of the guardian ad lateral the Court had power to order an infant be subjected to a blood group test.

7. There is no justification for the Court below to refuse the same on the ground that S. 112 of the Evidence Act would be an obstacle in seeking relief of blood group test.

8. Before we deal with the arguments, we will examine the law as available in England. At the beginning of the century scientists established that human blood had certain characteristics which could be genetically transmitted. The first recognised 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 individuals are the father on the basis of comparing blood groups, only that they are not the father.

9. By 1930s other immunological test became available. As a result the possibility of establishing paternity increased. An attempt by way of statutory provision to make blood test compulsory in Englan