This revision is against order dated 15-7-2014 in I.A.No.191 of 2013 in O.S.No.15 of 2011 on the file of Senior Civil Judge, Rajam whereunder he allowed petition filed under Section 45 of Indian Evidence Act directing the revision petitioner herein for scientific examination of D.N.A. Test along with her mother Tulasi.

Brief facts leading to this revision are as follows:

Revision petitioner herein filed suit against respondent herein claiming a sum of Rs.3,00,000/- towards educational and marriage expenses claiming herself as daughter born to the respondent herein through her mother Tulasi. Respondent herein resisted the suit questioning the paternity of the revision petitioner and he filed I.A.No.191 of 2013 requesting the court to refer revision petitioner herein and her mother Tulasi for D.N.A. Test. Trial judge, on a consideration of contentions and rival contentions of both parties and also the law on subject, allowed the application and directed the revision petitioner herein and her mother to go for D.N.A. Test. Aggrieved by which, present revision is preferred. Heard both sides.

Now the point that would arise for my consideration in this revision is whether the order of trial court dated 15-7-2014 is legal, correct and proper?

POINT:

Respondent herein earlier filed a divorce petition against mother of the revision petitioner-Tulasi and the said petition was settled and as per the settlement, the respondent herein paid Rs.3,00,000/- to the mother of the revision petitioner towards full and final settlement of all her claims. According to respondent herein, mother of revision petitioner received the said amount as guardian of revision petitioner towards her future claims and the petition is not maintainable.

Respondent also contended that after consummation of marriage, it was discovered that mother of revision petitioner conceived within 4 days of marriage. Admittedly, marriage with mother of revision petitioner was solomnized on 23-5-1989 and the revision petitioner was born on 7-1-1990. According to respondent, within seven and half months of marriage, revision petitioner was born and as per the Medical Certificate issued by Dr. G.Prameela, revision petitioner was a full term baby and it is not a premature delivery. According to respondent, mother of revision petitioner had premarital contacts with one Ramanayya who was the boy friend of revision petitioner’s mother and that the revision petitioner was not born through the respondent and therefore, he is not liable to pay any expenses and to prove the same, he requested the court to direct the revision petitioner and her mother to undergo D.N.A. test and for that purpose, the above I.A.No.191 of 2013 is filed.

Objection of the revision petitioner is two folded.

First objection is that under Section 112 of Evidence Act, there is a legal presumption and therefore, directing the revision petitioner to go for D.N.A. test is not maintainable. For this objection, the answer of respondent’s counsel is that this presumption of Section 112 of Evidence Act is a rebuttable presumption and as birth of revision petitioner was within seven and half months of marriage and as he questioned the paternity of the revision petitioner, only by D.N.A. test that legal presumption can be rebutted and no prejudice would be caused to the revision petitioner by undertaking a D.N.A. test. Advocate for revision petitioner contended that Section 112 of Indian Evidence Act specifically states a fact that any person was born during the continuance of a valid marriage within 280 days after the consummation where the mother remained unmarried, shall be conclusive proof that the said person is a legitimate child of that couple unless it is shown that the party to the marriage had no access with each other. He further submitted that here the respondent has not contended anywhere that there was no access between himself and wife Tulasi and without proof of such non-accesses at any point of time, he c