ORDER
T. Ch. Surya Rao, J.
1. The revision petitioner assails the order dated 27-6-2005 passed by the learned III Senior Civil Judge, City Civil Court, Secunderabad, in I.A. No. 680 of 2003 in LA. No. 462 of 2003 in O.S. No. 169 of 2003.
2. The revision petitioner is the second defendant in the suit filed by the second respondent herein. The first respondent herein is the first defendant in the suit. For the sake of convenience, the parties are referred to as they were originally arrayed in the suit.
3. The suit was filed for perpetual injunction. In the concomitant petition filed in LA. No. 462 of 2003 the plaintiff sought for temporary injunction against the defendants. While things stood thus, the first defendant filed a petition in I.A. No. 680 of 2003 under Section 45 of the Indian Evidence Act (for brevity 'the Act') requesting the Court to direct the second defendant along with him to subject themselves to DNA Test at C.C.M.B., Taranaka, Hyderabad. That application having been allowed under the impugned order, it is now being assailed by the second defendant in the suit.
4. For brevity and better understanding of the controversy, certain facts need be noticed. The plaintiff filed the suit, as aforesaid, for perpetual injunction in respect of one acre of land covered by Survey No. 54 of Kakaguda Village on the ground that he purchased the said property by means of a registered sale deed dated 11-8-1993 from the second defendant and his two sisters - Rafatunnisa Begum and Rahmatunnisa Begum; and that the first defendant in the suit claiming himself to be the son of the second defendant started giving trouble to him by threatening and interfering with the peaceful possession and enjoyment of the suit schedule mentioned property. That suit is being resisted mainly by the first defendant. The second defendant denied the alleged relationship of the first defendant. The first defendant claiming himself to be the son of the second defendant pleaded that the plaintiff was appointed as guardian and trustee of the first defendant by the second defendant to manage and protect the plaint schedule mentioned property settled upon by the first defendant by the second defendant till he attained the age of 21 years, and thus claimed interest over the schedule mentioned property. During the course of enquiry in I.A. No. 462 of 2003, the first defendant filed I.A. No. 680 of 2003 requesting the Court to subject the second defendant to DNA Test since he was denying the paternity so that it would clinchingly decide the controversial issue and help the Court in adjudicating the matter effectively. That application was resisted by the second defendant by filing a counter. In that counter, in Para 3 inter alia the second defendant admitted the marriage between himself and the mother of the first defendant Mumtaz Fatima on 6-11-1980. He pleaded further that there was a divorce in between them on 10-7-1981 and the first defendant having been born subsequent to the divorce on 26-8-1981, therefore, was not born to him.
5. The Court below having been of the view that DNA Test will assist the Court in arriving at the truth allowed the petition filed by the first defendant in the suit under the impugned order, as aforesaid.
6. Heard both the learned Counsel. In view of the rival contentions, the only point that arises for determination is as to whether it is expedient in the interest of justice to direct the defendants 1 and 2 to subject themselves to DNA Test?
7. From the matrix of the case, it is obvious that the first defendant claims himself to be the son of the second defendant. While it is the case of the first defendant that the plaint schedule mentioned property was given to him in the settlement whereunder the plaintiff was appointed as trustee and guardian during his minority to manage the property; it is the case of the plaintiff that the suit property was purchased by him under a registered sale deed from the second defendant and the first defendant has nothing to do with the said property. The dispute is purely in respect of the plaint schedule mentioned property in between the plaintiff and the first defendant. Regardless of the fact that the first defendant is the son of the second defendant, the rival contentions of the plaintiff and the first defendant referred to hereinabove can independently be decided even without adverting to the relationship inter se in between the first defendant and the second defendant.
8. Having regard to the denial of relationship in between the defendants 1 and 2 inter se, the paternity of the first defendant incidentally may fall for determination. That may, however, buttress the plea of the first defendant but certainly cannot be the core issue in the suit filed for perpetual injunction by the plaintiff against both the defendants who claimed to have purchased the property by means of a registered sale deed from the second defendant. The plea taken by the second defendant inter alia in his counter filed in I.A. No. 680 of 2003 is germane for consideration at this juncture. In Para 3, it is averred as under :
'3. It is submitted that the petitioner herein claims that he is the only son of respondent No. 2 herein. It is true that the respondent married Mumtaz Fatima on 6-11-1980 but this respondent denies that the petitioner has been born to him, since he was born within 280 days from the date of consummation. Though the Nikah took place on 6-11-1980, the consummation took much later. This respondent divorced the mother of the petitioner on 10-7-1981. The petitioner was born on 26-8-1981, i.e. after the divorce. Since the birth the petitioner was in the custody of his mother and maternal grandfather. The petitioner was born after the divorce and not before the divorce as claimed in the agreement dated 9-3-1984. Neither the petitioner was in the custody of this respondent at any point of time. This clearly indicates that the alleged agreement is false and fabricated, distorting the truth. This respondent reiterates his submission that he has been taken to an unknown destination forcibly and has been compelled to sign the blank papers. He has never executed any agreement gifting the property to the petitioner nor appointed any person as the guardian or trustee of the property.'
9. From the above excerpted para, it is obvious that the second defendant is denying the execution of the so-called gift in favour of the first defendant and appointment of the plaintiff as the guardian of the first defendant with a direction to handover the property to the first defendant after he attains the age of 21 years. The second defendant admits his marriage with the mother of the first defendant by name Mumtaz Fatima on 6-11-1980. There is no dispute that there was a divorce in between them on 10-7-1981. He admits further that the first defendant was born on 26-8-1981 i.e., 45 days after the said divorce. His plea appears to be that through the marriage was solemnized on 6-11-1980, there was no immediate consummation of the marriage and it was delayed. In his perception, since the first defendant was born within 280 days from the date of consummation, the first defendant could not have been his son. Perhaps, it might be the contention of the second defendant that the defendant was not born within 280 days from the date of consummation, as otherwise the plea could not make out any sense. Anyway, the specific pleading in the counter seems to be that the first defendant was born within 280 days from the date of consummation although consummation was delayed when the marriage was performed on 6-11-1980. These admitted facts, in my considered view, would enable the Court to decide the contentious issue of paternity in between the defendants 1 and 2 inter se effectively even without directing them to subject to DNA Test. Section 112 of the Act is germane in the context for consideration and it reads as under :
'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.'
10. It is also appropriate at this stage to consider the definition of the expression 'conclusive proof as given in Section 4 of the Act, which reads as under :
' 'Conclusive proof:-When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.'
The expression 'conclusive proof shall have to be read along with Section 112 of the Act. A combined reading of both the provisions would make it clear that if a person is born during the continuance of a valid marriage or within 280 days after the dissolution of the marriage and the mother remains unmarried, that fact is the conclusive proof that he is the legitimate son of the man, unless it can be shown that the parties to the marriage had no access to each other at any time, when that person could have been begotten. Legitimacy is the conclusive proof when it is shown that the son was born during the continuance of the marriage or within 280 days after the dissolution of the marriage when the mother remains unmarried. Once it is the conclusive proof, it admits of no evidence to disprove the same. The only manner in which the conclusive presumption can be avoided is by proving the non-access in between the husband and wife when the son could have been begotten. It may be mentioned here that it is not a case of rebutting the presumption for the reason that conclusive proof is irrebuttable. The other presumptions mentioned in Section 4 of the Act, namely, 'may presume' and 'shall presume' are rebuttable presumptions. Conclusive proof is irrebuttable. Therefore, no evidence can be permitted to be let in to disprove the conclusive presumption. It becomes a misconception to say that the person who is disputing the paternity of the child can disprove the same or rebut the presumption by adducing any evidence of non-access in between the couple at the relevant time. On the other hand, it appears to be the correct view that the operation of the conclusive presumption can be avoided by proving non-access at the relevant time. But, certainly it is not a case of rebutting the presumption. All this is germane having regard to the discussion made hereinabove that on the admitted facts as can be seen from the counter filed by the second defendant, the controversy in between the parties can be effectively adjudicated upon. Moreover, having regard to the contentious issue involved in between the parties inter se, the issue of paternity of the first defendant becomes ancillary.
11. In such circumstances, when paternity can be decided effectively even otherwise without resorting to DNA Test, the Apex Court in Banarsi Dass v. Teeku Dutta and Anr., 2005 (3) ALD 78 (SC), held that DNA Test cannot be directed in such proceedings. As can be seen from the facts in that case, an application under Section 372 of the Indian Succession Act was filed requesting grant of succession certificate on the ground that the applicant was the daughter. That was denied by the contesting respondents. They filed an application under Section 151 of the Code of Civil Procedure seeking DNA Test of the applicant. That application was allowed by the trial Court. The High Court reversed the same. Having regard to the nature of the proceedings and the controversy in between the parties inter se, the Apex Court held that the High Court did not commit any illegality and that was not a case where the DNA Test could be directed to be conducted. The Apex Court held further that the direction for DNA Test could be given only in deserving cases and not as a matter of routine and the case before it did not fall within that category.
12. In Sharda v. Dharmpal, : [2003]3SCR106 , a three Judge Bench of the Apex Court held in Para 81 thus :
'1. A matrimonial Court has the power to order a person to undergo medical test.
2. Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him.'
The Apex Court distinguished its earlier judgment in Goutam Kundu v. State of West Bengal, : 1993CriLJ3233 , wherein it was held that a person could not be compelled to give his blood sample for DNA Test. However, it has not considered its yet another judgment in Kamti Devi v. Poshi Ram, : [2001]3SCR729 . In Kamti Devi's case the Apex Court in Para 10 held thus :
'10. 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 ribonucleic acid (RNA) tests were not even in contemplation of the Legislature. The result of a genuine DNA Test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA Test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebutable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.'
13. A conspectus of the above referred judgments shows that the Court has the power to order a person to undergo medical test and such an order would not be in violation of the right to personal liberty under Article 21 of the Constitution. However, the Court should exercise such a power only when it is expedient in the interest of justice and when the fact situation in a given case warrants such an exercise. The DNA Test cannot rebut the conclusive presumption envisaged under Section 112 of the Act. The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof. It is always open to the Court to draw an adverse inference when the spouse refuses to undergo the test despite the direction given by the Court.
14. In my considered view, the judgment of the Apex Court in Banarsi Dass 's case squarely applies to the facts of the instant case. Merely because the second defendant denied the paternity of the first defendant, having regard to the nature of the proceedings filed and the other admitted facts emanating from the respective pleadings, there is no need for the Court in a routine manner to direct the first and second defendants to subject themselves to DNA Test oblivious of the fact that it tantamount to permitting the parties to lead evidence to rebut the conclusive proof enjoined under Section 112 of the Act which is not permissible in view of the mandate contained in Section 4 under the definition 'conclusive proof. It is always open to the Court to draw an adverse inference from the conduct of the parties, as can be seen from the respective pleadings.
15. For the above reasons, the civil revision petition is allowed at the threshold. No order as to costs.