The central legal point established in the judgment is the careful exercise of discretion by the court in ordering DNA tests, the strong presumption of legitimacy under Section 112 of the Evidence Act, and the requirement for establishing a strong prima facie case for such tests.

B.P. Katakey, J.

1. The Petitioner wife by the present petition is invoking the jurisdiction of this Court under Article 227of the Constitution of India by challenging the order dated 14.5.2007 passed by the learned Principal Judge, Family Court at Guwahati in Case No. FC(Civil) 417 of 2005 allowing the prayer made by the Respondent husband vide application dated 18.4.2008 for conducting the deoxyribonucleic acid test (commonly known as DNA test) and directing the Petitioner wife to produce the minor child before the court on 12.7.2007 for conduct of such DNA test.

2. A divorce proceeding in FC(Civil) 417 of 2005 was instituted by the Petitioner wife in the Family Court at Guwahati under Section 13 of the Hindu Marriage Act, 1955 ('the Act') praying for a decree dissolving the marriage between the Petitioner and the Respondent on the ground of cruelty. On receipt of the summons the Respondent husband entered appearance and filed written statement denying the allegation of cruelty made by the Petitioner wife in the application seeking divorce. During the pendency of such proceeding before the learned Family Court an application dated 18.4.2007 was filed by the Respondent husband intimating the learned court below that he is ready to get the marriage between the Petitioner and himself dissolved by a decree, provided the Petitioner wife do not claim "anything even maintenance of the children". In the said application a prayer has been made for conducting DNA test of the child to ascertain the paternity of the child. Since no objection was filed by the Petitioner wife, such prayer was allowed by the learned Principal Judge" of the Family Court vide order dated 14.5.2007, which is under challenge in the present petition.

3. I have heard Mr. B. Banerjee, learned Counsel for the Petitioner wife and Mr. R. De, learned Counsel appearing on behalf of the Respondent husband.

4. Mr. Banerjee, learned Counsel for the Petitioner wife referring to the pleadings of the Respondent husband in the written statement has submitted that the Respondent husband has admitted the paternity of the children and therefore the learned Principal Judge ought not to have passed the order dated 14.5.2007 directing conduct of DNA test of the minor child to ascertain the paternity, on the basis of the application dated 18.4.2007, wherein also the Respondent husband has not challenged the paternity of the child. According to Mr. Banerjee, since the minor child was admittedly born during the continuance of the valid marriage between the Petitioner and the Respondent, it is conclusive proof that the child is a legitimate son of the Respondent in view of the presumption to be drawn under Section 112 of the Evidence. However, such presumption though is rebuttable, the Respondent husband has not placed anything on record even to suggest that the parties to the marriage had no access to each other at any time when the child could have been begotten and on the other hand, the Respondent husband in the written statement has admitted the paternity of the child, submitted by the learned Counsel. Therefore, according to the learned Counsel, there was no occasion at all to pass the order for DNA test of the child, as has been done by the learned Principal Judge, Family Court, vide order dated 14.5.2007. Mr. Banerjee further submits that to pass an order for DNA test of the child, at the instance of a party to the proceeding, such party must establish strong prima facie case, which admittedly is lacking in the present case. In support of the contention the learned Counsel has referred to the decision of the Apex Court in the case of Banarsi Dass v. Mrs. Teeku Dutta and Anr., (2005) 4 SCC 449.

5. Mr. De, learned Counsel appealing on behalf of the Respondent husband, supporting the order dated 14.5.2007, has submitted that though the Respondent husband in the written statement has admitted paternity of the child, but because of the subsequent stand taken by the Petitioner ab