NIRMAL CHANDRA SAHA Vs. JYOTSNA RANI SAHA

JUDGEMENT

(1.) HEARD Mr. Das, Learned Counsel for the petitioner and Mr. Dutta, Learned Counsel appearing for the opposite party.

(2.) THE order dated 21.8.2003 passed by the Learned Civil Judge (Senior Division), Balasore in O.S. No. 725 of 1999 -I allowing the petition filed by the wife and directing to hold DNA test at her cost is assailed in this writ petition.

(3.) EVEN otherwise directing to have a DNA test for asking would cause great prejudice to the child inasmuch as his/her parentage will became (sic.) questionable thereby putting the child in a ridiculous position. Section 112 of the Evidence Act raises a conclusive presumption: Section 112 which raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, 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 to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. [See : [2001]3SCR729 , Kamti Devi v. Poshi Ram].