The court established the jurisdiction of the Matrimonial Court to order a DNA test, the burden of proof in cases of illegitimacy, and the caution to be exercised in granting such directions.

( 1 ) BY this petition, petitioner smt. Savita Bai has challenged the order dated 8-9-2003, passed by the IInd additional District Judge, Gadarwara, District-Narsinghpur in Civil Suit No. 24-A/2003 directing the petitioner to have her son undergo the D. N. A. Test for confirmation of his paternity.

( 2 ) BRIEF facts of the case are that petitioner Smt. Savita Bai was married to the respondent Chandrabhan Dubey on 22-4-1996 according to Hindu custom and gave birth to the child, a son on 21-11-1996 after a period of only seven months and doubting the paternity of the child, the respondent chandrabhan Dubey filed suit for divorce under Section 12 of the Hindu Marriage Act stating that Savita Bai was pregnant prior to the marriage and he does not wish to continue with the said alliance.

( 3 ) THE petitioner Smt. Savita Bai filed her written statement. Shri Chandrabhan dubey had earlier filed an application requesting the same that the son should undergo the D. N. A. Test, which was rejected by the Trial Court by order dated 17-3-2001.

( 4 ) THE written statement was filed by the petitioner. The evidence was led by both the parties and when the matter was fixed for final arguments, the respondent Chandrabhan dubey again moved an application under section 151 of the C. P. C. stating that in the light of the judgment of the Supreme Court in the matter of Sharda v. Dharmpal, AIR 2003 SC 3450 whereby the Apex Court had held that the Matrimonial Court had the jurisdiction to order a person to undergo the medical test and such an order did not violate the fundamental right of liberty under article 21. However, the Apex Court cautioned that the Court should exercise such powers only if the applicant has a strong prima facie case and if the person refuses to undergo the medical test, the Court would be entitled to draw an adverse inference.

( 5 ) THE application was allowed by the trial Court on the said basis by order dated 8-9-2003 and hence the present petition by smt. Savita Bai on the grounds that the court had already ruled on such an application on 17-3-2001 and hence the second application was barred by the principle of res judicata. Moreover, both the parties had concluded their evidence and the case was listed for final hearing and the application was apparently mala fide.

( 6 ) COUNSEL for petitioner has also pointed out that in the matter of Sharda v. Dharmpal, (AIR 2003 SC 3450) (supra) the court had cautioned that the power to grant such directions for medical examination were to be exercised only when the applicant had a strong prima facie case and the court had sufficient material brought before it to justify the order.

( 7 ) COUNSEL for respondent Chandrabhan dubey on the other hand has stated that he had filed for divorce mainly on the ground that he suspected the paternity of the child and doubted the moral character of the petitioner-wife Smt. Savita Bai and hence it was crucial for him to prove conclusively that the child was not born out of lawful wedlock. Pointing out to para 34 of the said judgment which states thus : "in certain cases medical examination by the experts in the field may not only found to be leading the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. "

( 8 ) SECONDLY, the Apex Court had held that no-one can be compelled to give any medical test but an adverse inference can be drawn, if the respondent refuses to submit to the medical examination.

( 9 ) FURTHER relying on Banarsi Dass v. Teeku Dutta (Mrs.), (2005) 4 SCC 449, counsel for respondent has pointed out that reiterating the directions and the ratio laid down in the matter of Sharda v. Dharmpal, (AIR 2003 SC 3450) (supra), the Apex Court has stated regarding D. N. A. Test thus:

"we may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribo-nucleic acid (RNA) tests were

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