The right to privacy, though fundamental, is not absolute and may be restricted in certain circumstances.

( 1 ) THE main question which craves for an answer is as to whether the petitioner can resist the request of respondent No. 1 for directing the pathology Department of the All India Institute of Medical Sciences, New Delhi to prepare a slide containing the blood cells of respondent No. 1 and calling for the slides and blocks of the case relating to the petitioner and order a DNA test with a view to ascertain if respondent No. 1 is the father of the foetus. The petitioner s claim is that such an order would infringe has constitutional right of her privacy.

( 2 ). The present application under consideration arises as a result of the following facts. The petitioner has filed a petition for dissolution of marriage on the ground of cruelty and adultery against respondent No. 1 under Section 10 of the indian Divorce Act. The said petition is being contested on the ground of counter- allegations of similar nature.

( 3 ). Respondent No. 1, by virtue 6f I. A. 3804/99 contends that case of the petitioner is that respondent No. 1 had adulterous affair with respondent No. 2 and the respondent No. 1 on the contrary asserts that petitioner had adulterous affairs with one Jose Thomas, which resulted in petitioner being on family way. It is now not much in issue between the parties whether the pregnancy of the petitioner^ which was admitted a tubular pregnancy was terminated on 30. 12. 1994 at All India institute of Medical Sciences. Respondent No. 1 asserts that he has come to know that records and slides of tubular gestation of the petitioner have been reserved in all India Institute of Medical Sciences. The slides are kept under Hospital Registration no. 415330. It contains cells of aborted foetus and therefore, while respondent No. 1 asserts that he is not the father of the same, he seeks that a DNA test would also be beneficial and it would establish as to who is the father of the aborted foetus. With these assertions, it has been claimed that the pathology department of the All India institute of Medical Sciences be directed to prepare the slides containing the blood cells of respondent No. 1 and Court should call for slides and blocks of the case relating to operation of the petitioner and send it for test (DNA test ).

( 4 ). Needless to state that in the reply filed, the application as such, has been contested. It has been asserted that the petition has been filed only to delay the disposal of divorce petition and that respondent No. 1 is trying to create smoke screen for his own affairs. It is denied that DNA examination of the slides would conclusively prove the paternity of the foetus. It is alleged that the Courts in India do not have the authority to order DNA test in civil and quasi-civil matters in particular, where it is to establish the paternity even of living child where husband had the access. Such an order, it is alleged, would be in violation of the constitutional and legal rights of the petitioner.

( 5 ). It is in this back-drop of these facts that the main question referred to above, comes up for consideration. But before converging into the same, it would be appropriate to deal with the other submissions that were made at the Bar. Learned counsel for the petitioner urged that there is no provision permitting the collection of the evidence at the behest of the Court and, therefore, such an order, as such, would not be passed.

( 6 ). It is true that the Code of Civil Procedure or the Indian Evidence Act does not specifically deal with any such situation that Court can direct or be instrumental in collecting the evidence for or on behalf of the either party. When the parties litigate it is for them to produce the necessary evidence relevant for disposal of the matter but just exceptions would always creep in. When certain evidence cannot be allowed or collected, without the order of the Court in that event either of the party can seek the intervention of the Court. Reverting back to the controversy in the p