The presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872 and the test of 'eminent need' for directing a D.N.A. test are crucial legal principles established in the judgment.

JUDGMENT :

Manoj Kumar Gupta, J.

1. By impugned order dated 30.4.2019 the Additional Principal Judge, Family Court, Basti has rejected an application made by the petitioner for getting D.N.A. test of Km. Anjali (opposite party No. 1) conducted by a team of medical experts.

2. The opposite parties brought suit for maintenance against the petitioner being Original Suit No. 519 of 2011. According to the opposite parties, they are daughter-in-law and granddaughter respectively of the petitioner herein. Opposite party No. 2 was married to Santosh Kumar, son of the petitioner on 17.5.2006 and vidai ceremony took place on 18.5.2006. She was brought to her in-laws house at Mauza Hariharpur and she started living with her husband. Out of the said wedlock, opposite party No. 1 was born. She is stated to be of four years of age in the year 2011 when the suit was instituted. Santosh Kumar, husband of opposite party No. 2 and father of opposite parry No. 1 died on 29.12.2007. Since, the opposite parties do not have any source of livelihood, they filed the suit in question.

3. The petitioner filed an application dated 25.4.2017 alleging that opposite party No. 2 had before entering into" matrimonial alliance with his son Santosh Kumar married different persons and even after death of Santosh Kumar, she had remarried. It was alleged that opposite parry No. 1 was not born out of the wedlock between opposite party No. 2 and his son Santosh Kumar. Therefore, prayer was made for getting D.N.A. test of opposite party No. 1 conducted by a team of medical experts.

4. The application was opposed by the opposite parties. They brought on record extract from family register wherein opposite party No. 1 is shown as daughter of Santosh Kumar.

5. The trial court, placing reliance on the judgment of the Supreme Court in Goutam Kundu v. State of West Bengal, 1993 ACC 416, held that the presumption under Section 112 of the Indian Evidence Act, 1872 is attracted in such matters and unless it is shown that the parties to the marriage had no access to each other at any time when the daughter was born, there is no need of getting conducted D.N.A. test. The court has also observed that prima facie the documentary evidence also establishes that opposite party No. 1 is daughter of late Santosh Kumar and has accordingly rejected the application.

6. Learned counsel for the petitioner submitted that in extract of family register, date of birth of opposite party No. 1 is shown as 24.4.2004 i.e., a date before the marriage between opposite party No. 2 and Santosh Kumar was solemnised. In other words, the submission is that since opposite party No. 1 was born before marriage between opposite party No. 2 and Santosh Kumar, therefore, she was not born out of wedlock between them.

7. Section 112 of the Evidence Act, 1872 reads thus:

"112. Birth during marriage, conclusive proof of legitimacy.--The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

8. The Supreme Court in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633, has held as follows:

"22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter D.N.A. test is eminently needed. D.N.A. test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court