The court has the power to direct a party to give a blood sample for examination to determine the parentage of a child in a dispute about adultery, but the party cannot be compelled to do so. If a party refuses to give a blood sample, the court may draw an adverse inference against that party.

Headnote:
BLOOD TEST - PARENTAGE DISPUTE - EVIDENCE ACT, SECTION 112 - COURT'S POWER TO ORDER BLOOD EXAMINATION - ADVERSE INFERENCE FROM REFUSAL TO GIVE BLOOD SAMPLE - NEED FOR LEGISLATIVE REFORM - SECTION 112 OF THE EVIDENCE ACT REQUIRES RECONSIDERATION.
Fact of the Case:

The petitioner-husband filed a petition for divorce against his wife, alleging adultery and that the child born to her during the marriage was not his. The wife denied the allegations and resisted the suit. The trial court rejected the husband's application for blood examination of himself, his wife, and the child to determine the parentage of the child.
Finding of the Court:

The court held that the trial court erred in rejecting the husband's application for blood examination. The court held that the court has the power to direct a party to give a blood sample for examination, but the party cannot be compelled to do so. The court further held that if a party refuses to give a blood sample, the court may draw an adverse inference against that party.
Issues: 1. Whether the court has the power to order a blood examination to determine the parentage of a child in a dispute about adultery? 2. Whether a party can be compelled to give a blood sample for examination? 3. What are the consequences if a party refuses to give a blood sample?
Ratio Decidendi: 1. The court has the power to direct a party to give a blood sample for examination to determine the parentage of a child in a dispute about adultery. This power is derived from section 151 of the Code of Civil Procedure, which allows the court to give appropriate directions in the larger interests of justice. 2. A party cannot be compelled to give a blood sample for examination. The court cannot enforce an individual to give blood who refuses to give a sample blood. 3. If a party refuses to give a blood sample, the court may draw an adverse inference from the conduct of the party who refuses to give blood sample inspite of the directions of the Court.
Final Decision: The court allowed the writ petition and directed the trial court to direct the wife and the child to appear before the court and state whether they are willing to give blood samples for comparison with the petitioner's blood sample. If they agree, the trial court shall give necessary directions as to in which hospital the blood samples are to be drawn and to whom the blood samples are to be sent for the purpose of comparison and giving opinion. If the wife declines to give blood sample or is not willing to give blood sample, then the trial court shall record the same in the Roznama and after trial, draw such adverse inference against the wife as may be permissible in the facts and circumstances of the case in the light of the pleadings, available evidence and the conduct of the parties.

JUDGMENT - R.G. VAIDYANATHA, J. :---An interesting question of law arises in this petition regarding the powers of the Court in ordering the blood examination when there is dispute about the parentage of the child. This writ petition is directed against the Order dated 21-10-1993 below Exhibits 46 and 52 in H.M. Petition No. 119 of 1988. Rule returnable forthwith. By consent of both the Counsel, the petition is taken up for final hearing. I have heard both the Counsel at length.

2. Few facts which are necessary for the disposal of this petition are as follows :

The petitioner-husband filed a petition in the trial Court for a decree for divorce against his wife, the first respondent. The alleged paramour of the first respondent is made as respondent No. 2.

The main allegation in the petition is that after marriage which took place on 8-3-1983, the petitioner and the first respondent were residing at Kolhapur. It is stated that the wife deserted the petitioner and left the matrimonial home and went away to her parents house on 27-5-1983. There is no co-habitation between the petitioner and the first respondent after 27-5-1983. It is further alleged in the petition that even from February 1983 till 27-5-1983, there was no sexual intercourse between the husband and wife since the wife was suffering from stomach ache and problem of menstruation. Then it is alleged that a child was born to the first respondent on 3-1-1984, though as per manipulated record, the said child is shown to have been born on 30-12-1983. The child is named as Sunil. According to the petitioner, he is not the father of the child. His allegation is that the first respondent has given birth to this child through illicit relationship with somebody and most likely, the second respondent. Hence the petition is filed for divorce on the ground of adultery on the part of the first respondent.

3. The first respondent resisted the suit by filing written statement. The allegation of adultery is denied. The allegation that the child is born through somebody is also denied.

4. When the matter came up for inquiry, an application was filed by the husband for blood examination of himself, his wife and the child to determine the parentage of the child. This was opposed by the wife. After hearing both the sides, the learned trial Court rejected the application. Being aggrieved by that Order, the husband has come up with this writ petition.

5. The learned Counsel for the petitioner has questioned the correctness and legality of the impugned Order. It was argued that in the facts and circumstances of the case, the Court has ample powers to direct the wife and the child to give blood samples for being examined with the blood sample of the petitioner for deciding whether either he is or he is not the father of child Sunil. On the other hand, the learned Counsel for the respondent supported the impugned order and contended that the wife cannot be compelled to give her blood sample and further it was argued that the petitioner has not made out a case for such an order being passed.

6. The short question that arises for determination is "whether the Court has powers to direct a party to give blood sample and further the Court can compell a party to give such blood sample?"

7. The learned Counsel for the respondent contended that having regard to the statutory presumption available under section 112 of the Evidence Act, there is legal presumption that the child is born to the petitioner and therefore, no further inquiry is necessary in the matter. That is the view, which appears to have been taken by the trial Court, that in the absence of pleading about non-access, the husband cannot get over the presumption under section 112 of the Evidence Act. It is true that section 112 raises a conclusive presumption that if a child is born during the wedlock it shall be presumed that the child is born to the spouses unless it is proved that there was no access between the husband and wife during the

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