Yadav, J. --1. The challenge put forth in the present writ petition filed under Article 227 of the Constitution of India, is to an order dated 15.5.2008 passed by the Presiding Officer, Family Court, Rewa, whereby the trial Court while entertaining an application under order 26 Rule 10A, Code of Civil Procedure in a proceeding under section 13 of Hindu Marriage Act, 1955 initiated at the instance of the respondent husband, allowed the conduction of DNA test of the child, Pankaj Kumar, petitioner No.2.

2. The petitioner wife questions the order on the anvil that, the same, besides being at a premature stage also tantamount to collection of evidence regarding paternity of the child which otherwise is to be rebutted by leading evidence by the respondent husband. The facts on which the objection is being raised is that the respondent husband has set up his case of divorce on the ground of desertion alleging that the petitioner wife after marriage in the year 1987 lived with the respondent till 1992 and thereafter is living with her parents, she gave birth to petitioner No. 2 in the year 1994. This fact is, however, disputed by the petitioner No. 1 who has brought on record the certificate issued by the District Education Board indicating therein the date of birth of the petitioner No. 2 being 12.10.1992. It is, therefore, contended on behalf of the petitioner that unless the respondent-husband proves the fact that the petitioner No. 2 was born in the year 1994 and not in the year 1992, and the fact that she was leading an adulterous life, the respondent cannot resort to seek DNA test of the child merely to collect evidence.

3. The respondent on his turn, however, supports the impugned order. The learned counsel for the respondent further relies upon the judgment rendered by various High Courts, viz., Radhey Shyam v. Mst. Pappi, AIR 2007 Rajasthan 42; Heera Singh v. State of U.P. and others, 2005 CriLJ 3222; Smt. B. Vandana Kunzari v. P. Praveen Kumar and another, AIR 2007 Andhra Pradesh 17; V.K. Bhuvaneshwari v. N. Venugopal, AIR 2007 (DOC) 158 (Mad.).

4. Considered the rival submissions and perused the impugned order and the pleadings thereof. It is observed therefrom that the certificate, which is placed on record as Annexure P-4 reveals the date of birth of the child as 12.10.1992 and the pleadings reveals that the petitioner-wife had allegedly deserted the respondent husband in the year 1992. The factum of paternity is yet to be rebutted because section 112 of the Evidence Act, raises a conclusive presumption regarding paternity, stipulating therein:

"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."

5. The presumption under section 112 is rebuttable and "can be displaced" as was held by the Supreme Court in Goutam Kundu v. State of West Bengal and another, AIR 1993 SC 2295 : "by a strong preponderance of evidence, and not by a mere balance of probabilities".

6. Similarly in Kamti Devi v. Poshi Ram, AIR 2001 SC 2226, Their Lordships the apex Court were pleased to observed thus:

"10. But section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is t