Second daughter cannot be considered to be biological daughter of petitioner.

The revision petitioner is the husband of the 1st respondent/wife. The 2nd respondent is his son. Respondents 3 and 4 are his daughters. The 1st respondent filed M.C.No.28 of 2009 before the Family Court, Mahabubnagar seeking maintenance for herself and for her 3 minor children. Through the impugned order dated 19-9-2011, Family Court granted maintenance at Rs.1,500/- per month in favour of the 1st respondent/wife and at Rs.1,000/- per head per month in favour of respondents 2 to 4, who are the children of the petitioner and the 1st respondent. Assailing the same, the present revision is laid.

2. Albeit the petitioner-husband questioned the entire case, he confined his claim to the maintenance awarded against his wife and against his 2nd daughter. So far as the wife is concerned, the contention of the husband is that the wife is a tailor, has her own earnings and is capable of maintaining herself, so much so, she is not entitled to maintenance. So far as the 2nd daughter (4th respondent herein) is concerned, it is the contention of the husband that the 2nd daughter is not his biological daughter and that he is not liable to pay maintenance to the 2nd daughter. Albeit he thus attributed unchastity to his wife so far as the 2nd daughter is concerned, he did not contend that his wife is not entitled to maintenance owing to her unchastity. His dispute regarding the right of the wife for maintenance is on the ground that the wife has been making her own earning and is not entitled to maintenance. It may also be noticed that the financial capacity of the husband and the quantum of maintenance awarded in favour of the wife, son and the daughters are not in question. I therefore do not deliberate upon these aspects.

3. The learned counsel for the husband submitted that he raised a contention before the Family Court that the 2nd daughter is not his biological daughter. He also submitted that he filed Crl.M.P.No.44 of 2010 before the Trial Court requesting the Court to send the 2nd daughter for DNA Test to establish his contention that the 2nd daughter is not his biological daughter. That objection was resisted by the wife. On 10-6-2010, the Trial Court dismissed the application. Questioning the same, the husband preferred Crl.R.C.No.1276 of 2010 before this Court. The High Court dismissed the revision, inter alia, holding that if the respondents are not willing for the DNA Test, the Trial Court can take adverse inference and that the Court could not compel the 2nd daughter to undergo DNA Test. Subsequently, M.C.No.28 of 2009 was disposed of.

4. It is the contention of the learned counsel for the husband that the Trial Court did not draw any adverse inference against the respondents albeit the respondents declined to submit the 2nd daughter for DNA Test. He placed reliance upon B.VANDANA KUMARI v. P.PRAVEEN KUMAR in support of his contention. With reference to presumption under Section 112 of the Evidence Act, 1872, a learned Single Judge of this Court held that normally, the rule of evidence is that the burden is on the party who asserts the positive and that in respect of Section 112 of the Evidence Act, the burden is upon the party who pleads the negative. Regarding the DNA Test, the learned Judge held that in the facts and circumstances of the case, it would be appropriate to direct the concerned party to undergo the DNA Test.

5. Sri K.Someswara Kumar, learned counsel for the wife and children, contended that DNA Test is not conclusive of the paternity of the child. In Goutam Kundu v. State of W.B., the father sought for the blood test of the child. It does not appear that the father sought for DNA Test. At any rate, much water has flown under the bridge after 1993 and in view of the march of science, it is now well settled that DNA Test more or less is conclusive prove of paternity. I therefore reject the contention of the learned counsel for the respondents that resistance to DNA Test by the respondents cannot lead to an