JUDGMENT V. Khalid, J. 1. This revision arises from an Order of the District Magistrate, Manjeri, in M. G. No. 109 of 1973 dismissing the application filed by the petitioner claiming maintenance for her child, born in lawful wedlock with the respondent. In the application filed before the court below on 14th December 1972 claiming maintenance it was averred that the marriage between the petitioner and the respondent took place about 2 years ago and a child was born in that marriage. The marriage ended in divorce on 17th May 1972, by mediation, and the respondent agreed to pay a monthly allowance of Rs. 25 to the child. Since the respondent failed to pay maintenance as under taken by him at the time of mediation, this petition was filed. In the counter filed by the respondent, the respondent denied the fact that the marriage took place two years ago. He stated that the Nikah took place on 19th March 1971 but the marriage function MALAYALAM was only on 28th March 1971. One month thereafter, the respondent discovered that the petitioner was pregnant. Immediately she was taken to her house. Since the petitioner was pregnant at the time of marriage, the marriage is legally invalid. It is stated that there was a formal divorce of the formal marriage immediately after the child was born. The respondent also denied the fact of mediation. 2. The petitioner in her examination-in-chief did not specify the date of the marriage but stated that three or four days after the birth of the child, the marriage was dissolved. She stated that the child was born 9 months after the marriage. In cross-examination, she was asked whether the divorce was not on 17th May 1972, to which she pleaded ignorance. She also stated that she did not know the respondent before the marriage; nor had she any connection with him before the marriage. She set up a custom that during the pregnancy divorce is not effected. P. W. 2 is a witness examined on the side of the petitioner. He was a mediator also. 3. The respondent in his evidence deposed that the marriage was on 19th March 1971 and the MALAYALAM was on 28th March 1971. According to him, the petitioner admitted that she was pregnant at the time of marriage. P. W. 2 is a witness examined on the side of the petitioner. He was a mediator also. 3. The respondent in his evidence deposed that the marriage was on 19th March 1971 and the MALAYALAM was on 28th March 1971. According to him, the petitioner admitted that she was pregnant at the time of marriage. The birth of the child was on 8th November 1971 and divorce was not effected during the pregnancy of the petitioner since it was not usual to do so. He deposed that it was nearly a month after the marriage that he discovered that the petitioner was pregnant. 4. Before the Magistrate, the respondent herein applied for testing the blood group of himself and the child. The petitioner did not consent to submit the child for a test. The court below based its decision on the dictum laid down by the Supreme Court in Nand Lal v. Kanhaiya Lal A.I.R. 1960 S.C. 882, regarding the jurisdictional fact of the paternity of the child: "The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. The section by conferring jurisdiction on the Magistrate to make an allowance for the maintenance of the child, by necessary implication, confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent. It is the duty of the Court, before making the order, to find definitely, though in a summary manner, the paternity of the child." The court below, relied on the following decisions on the consequence of the refusal by the party to submit to a blood test. "It was observed in A.I.R. 1959 Madras 396 that the consequence of his refusal will be taken into consideration along other circumstances in evaluating the evidence against him. In A.I.R. 1970 Madras 103, Jayaraj Anthony v. Mary Seemy Ammal, the refusal to submit to Medical Examination was taken as a circumstance tended to an adverse inference against the recalcitrant party. To the same effect is the decision in 1968 Calcutta 105 and A.I.R. 1963 Gujarat 250. It may be noted that the C.P. was prepared to undergo the test which had the risk of going against petitioner who was the recalcitrant party. To the same effect is the decision in 1968 Calcutta 105 and A.I.R. 1963 Gujarat 250. It may be noted that the C.P. was prepared to undergo the test which had the risk of going against petitioner who was the recalcitrant party. The conduct of the petitioner who declined to submit to the test would justify the necessary adverse inference against her case. Having regard to the above features I am inclined to hold that petitioner is not entitled to benefit of the presumption under section 112 of the Evidence Act. The decisions cited above are relied upon as guide". The court below drew an adverse inference from this conduct of the petitioner and dismissed the petition. 5. When the matter came before this court, Moidu, J. made the following order: "The lower Court made an adverse inference against the petitioner as she did not allow the blood test of the child and respondent to be conducted. The petitioner agrees to a test. So at the cost of the respondent a blood test shall be conducted at the Medical College Hospital, Calicut. A requisition shall be sent to the Superintendent of Medical College, Calicut, asking him to have the blood test of the petitioner child and respondent on 7th September 1973 at the Medical College Hospital. The superintendent will send the report to this court direct. The respondent will pay Rs. 30 to the petitioner Advocate to meet the petitioner costs for going and returning from Calicut. For hearing,17-9-1973. (Sd.) 22-8-1973"�. Since the blood test of the mother, the petitioner, was not taken, it was again ordered that she should appear before the doctor on 24th December 1973 for her blood test to be taken. It appears that the petitioner did not appear before the Medical Officer on the date specified and therefore this court directed the petitioner to appear before the doctor on 30th March 1974 for blood test. Ultimately, it is seen that blood test of the petitioner also was taken. The concerned doctor forwarded his report to this Court. The same is marked as Ext. C-1. 6. The learned District Magistrate dismissed the petition holding that the presumption under section 112 of the evidence Act was not available to the petitioner on the ground of her refusal to submit herself to a blood test. It is this order that is challenged in this revision petition. 7. The same is marked as Ext. C-1. 6. The learned District Magistrate dismissed the petition holding that the presumption under section 112 of the evidence Act was not available to the petitioner on the ground of her refusal to submit herself to a blood test. It is this order that is challenged in this revision petition. 7. Now that the blood test is taken and the report is available, the situation has changed, since the basis on I which the court below dismissed the application has disappeared. Several questions were raised by the counsel for the petitioner and the respondent in this case. According to the petitioner counsel, the marriage having been admitted, the cast iron presumption in favour of the child under section 112 of the Evidence Act is available and the respondent has not succeeded in rebutting the same. It is also contended that from the date of the marriage on 19th March 1971 to the birth of the child on 8th November 1971, there are 220 days available and even de hors the presumption under section 112 of the Evidence Act, the period of gestation is sufficient for a child to be conceived after marriage and to be born alive. It is further contended that the report of the blood test is not conclusive evidence and in the absence of the examination of the expert, it should not be relied upon. 8. The respondent counsel argument is that the presumption under section 112 is not available in this case since the petitioner was proved to be pregnant on the date of marriage, which invalidated the marriage itself, and therefore, it is not even necessary for the respondent to prove non-access. Regarding the blood test it is contended that the examination of the expert is not necessary since the test was taken as per orders of this court, practically on consent, and the result of the test is conclusive proof negatively that the respondent is not the father of the child. I shall consider these questions one by one. 9. Though there is dispute regarding the date of the marriage and the date of consummation, we will, for the purpose of this case, take the date of marriage as 19th March 1971. The birth admittedly is on 8th November 1971, which leaves a period of 220 days for the child to be conceived and born. 9. Though there is dispute regarding the date of the marriage and the date of consummation, we will, for the purpose of this case, take the date of marriage as 19th March 1971. The birth admittedly is on 8th November 1971, which leaves a period of 220 days for the child to be conceived and born. The petitioner has relied both upon the presumption in section 112 of the Evidence Act and sufficiency of the period of gestation. I will deal with the case based on the presumption first. 10. Section 112 reads as follows: "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 un-married, 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."� The presumption under section 112 in this case has to be looked at in two different ways. One, whether there was in existence a valid marriage when the child was born. Two, whether the evidence on record sufficiently establishes that the petitioner was pregnant at the time of the marriage, and if so, whether section 112 can be called in aid. The answer to these questions depends upon the fact whether a marriage under muslim law is void or invalid, between a man and woman who is pregnant at the time of marriage. The question has another facet and that is, when the begetter is the man himself. These considerations are necessary since section 112 contemplates the continuance of a valid marriage. 11. The respondent counsel contended that there was no valid marriage, since, on the date of the marriage the petitioner was pregnant and hence section 112 does not apply to the case. It is necessary to understand the scope of section 112 of the Evidence Act before applying the same. Section 112 proceeds upon adopting the date of birth, as distinguished from conception, as the turning point of legitimacy. There was some differences of opinion among Judges whether section 112 superseded the rules of Mohammedan law as to legitimacy. It is necessary to understand the scope of section 112 of the Evidence Act before applying the same. Section 112 proceeds upon adopting the date of birth, as distinguished from conception, as the turning point of legitimacy. There was some differences of opinion among Judges whether section 112 superseded the rules of Mohammedan law as to legitimacy. Under the Mohammedan law the presumption of legitimacy from marriage follows the bed and whilst the marriage lasts, the child of the woman is taken to be the husband child. An ante-nuptial child is illegitimate. Thus, the rule in Mohammedan law as a condition of legitimacy clashes with the rule in section 112. This difficulty need not detain us since the rule contained in section 112 of the Evidence Act is only a rule of evidence and not a rule of substantive law of marriage or parentage regulating inheritance and therefore there need not be any clash between Mohammedan law and the law of inheritance. Moreover, we are here concerned only with the question of maintenance and therefore question of legitimacy etc. may not be strictly relevant. 12. The scope of section 112 and the background against which it was enacted came up for discussion in an old case reported in Muhammed Allahdad Khan v. Muhammed Ismail Khan, 1888 (10) Allahabad 289 before a Full Bench of the Allahabad High Court consisting of Mr. Justice Mahmood also. The learned Judge had this aspect of conflict between the Evidence Act and the Mohammedan law in view when he observed as follows: " "Such being my view of the facts of the case, it is not necessary to enter into any elaborate discussion as to how far the provisions of section 112 of the Indian Evidence Act (Act 1 of 1872), as to birth during wedlock being conclusive proof of legitimacy, would affect a case such as this. That section of course proceeds upon adopting the period of birth, as distinguished from conception, as the turning point of legitimacy. (It is a peculiarity of the English law that it does not concern itself with conception, but considers a child legitimate who is born of parents married before the time of his birth, though they were unmarried when he was begotten (Lord Mackenzie Roman Law P. 130 4th Edn). (It is a peculiarity of the English law that it does not concern itself with conception, but considers a child legitimate who is born of parents married before the time of his birth, though they were unmarried when he was begotten (Lord Mackenzie Roman Law P. 130 4th Edn). This peculiarity of the English Law has no doubt been imported into India by section 112 of the Indian Evidence Act, and it may some day be a question of great difficulty to determine how far the provisions of that section are to be taken as trenching upon the Mohammedan law of marriage, parentage, legitimacy, and inheritance, which departments of law under other statutory provisions are to be adopted as the rule of decision by the Courts in British India.................." Ante-nuptial courting and pre-marital relationship are not taboo in the West. It is not unusual there for premarital conception and subsequent marriage between the same person. It was this attitude to sex relationship that afforded the basis for the presumption under section 112 and it is this presumption that is bodily incorporated in section 112 of the Evidence Act. Needless to say, that the ordinary Indian has not reconciled himself to this attitude. Although times have changed; even now pre-marital relationship is viewed with disfavour by the Indian society. However, the presumption under section 112, which rule applies to all alike, overrides considerations based on personal law. The question is how far it can be used in the present case. 13. It is contended by the counsel for the petitioner that all that is necessary in this case is to prove the existence of the marriage. There is proof on the side of the petitioner of the existence of the marriage and therefore straightaway section 112 applies. To shift this burden, it is the duty of the respondent to prove non-access. He has not proved it and therefore the presumption has to be called into aid and maintenance granted to the child. In support of this contention, a decision reported in Raghavan Pillai v. Gourikutty Amma and another 1959 K.L.J. 988 was brought to my notice. It was observed there that section 112 of the Evidence Act provides that birth during marriage is conclusive proof of legitimacy of a child. In support of this contention, a decision reported in Raghavan Pillai v. Gourikutty Amma and another 1959 K.L.J. 988 was brought to my notice. It was observed there that section 112 of the Evidence Act provides that birth during marriage is conclusive proof of legitimacy of a child. This presumption can, no doubt, be rebutted by evidence that the husband and wife had no access to each other at any time when the child could have been begotten. Such evidence must be strong, distinct, clear, satisfactory and conclusive. It is also observed that the presumption under section 112 arises not only in cases in which the question of legitimacy is raised for the purpose of inheritance by succession but it equally applies for deciding cases arising under section 488 Cr. P.C. In 1963 K.L.J. 1002 also the same principle is enunciated. 14. In perumal v. Ponnuswami A.I.R. 1971 S.C. 2352, where the Supreme Court had to consider the presumption of legitimacy, it is observed as follows: if it is accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham.� 15. Counsel for the respondent does not dispute that presumption under section 112 is available in a case like this. According to him, the important pre-requisite for application of section 112 is the existence of a valid marriage. He would contend that the petitioner was pregnant at the time of marriage, which renders the marriage invalid and therefore the presumption under section 112 of the Evidence Act was not available to the petitioner. The respondent has pleaded this case, although not with clarity in the counter-statement filed by him. The question is, whether a marriage at a time when the wife had already conceived is void or invalid under the Mohammedan Law. The counsel for the respondent has invited my attention to a decision reported in Abdulla v. Beepathu 1967 (i) I.L.R. kerala 361 rendered by Isaac, J. In that case also, the parties were Muslims. The marriage took place on 10th December, 1957 and the child was born on 5th May 1958. The counsel for the respondent has invited my attention to a decision reported in Abdulla v. Beepathu 1967 (i) I.L.R. kerala 361 rendered by Isaac, J. In that case also, the parties were Muslims. The marriage took place on 10th December, 1957 and the child was born on 5th May 1958. There, the mother examined as P.W. 1, admitted, that she was pregnant for four months at the time of marriage. The learned Judge held that since there was an admission by the wife that she was pregnant at the time of marriage, which fact was not known to the husband, the marriage is void. The wife had a burden to prove that the husband knew that she was pregnant at the time of marriage. The learned Judge held that on the evidence in that case, the wife had not discharged the burden cast on her. Reliance was placed upon a decision in Abdual Rahimankutty v. Aysha Beevi 1959 K.L.T. 1077 which was almost identical to the one with which Isaac, J. was dealing, for taking the view. In the present case the matter is different since there is no admission by the wife that she was pregnant at the time of the marriage. All that we have is the evidence of C.P.W. 1. who says that the petitioner had admitted to him after marriage that she was pregnant. It will not be safe to rely upon this evidence to hold that the petitioner was pregnant at the time of marriage to disentitle her from claiming the presumption under section 112 of the Evidence Act. What is more, it was contended by the counsel for the petitioner, relying upon the books on Mohammedan Law that the marriage with a woman who was pregnant at the time of marriage is not invalid. It is contended that to make the marriage invalid, the party has to put forward a case of fraud, which would vitiate the contract; the marriage being a contract under the Mohammedan Law. 16. Mulla Mohammedan Law deals with various invalid marriages. A marriage which is not valid may be either void or irregular. A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. 16. Mulla Mohammedan Law deals with various invalid marriages. A marriage which is not valid may be either void or irregular. A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus, a marriage with a woman prohibited by reason of consanguinity, affinity, or fosterage is void, the prohibition against marriage with such a woman being perpetual and absolute. An irregular marriage is one which is not unlawful in itself, but unlawful for something else, as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance such as the absence of witnesses. Two kinds of invalid marriages are, Batil and Fasid marriages. Mulla does not deal with a marriage of this type and it cannot be said definitely whether a marriage with a woman who is pregnant is void. Nor does Tayyibji refer to this type of marriage as void. I doubt whether a marriage is void simply because it was with a pregnant woman. A marriage with a lady who had already conceived, if by consent, cannot under modern standards or under equity be said to be invalid or sufficient to deny to a child born in that marriage its maintenance- 17. I may refer to a verse in the Holy Quran which may give insight into this question: "And the divorced women should keep themselves in waiting for three courses. And it is not lawful for them to conceal that which God has created in their wombs, if they believe in God and the Last Day"� (2:228) The injunction is for two purposes, one to give opportunity for reconciliation and the other to see whether the woman is pregnant. This period of Iddat is to ward against a marriage of a divorced but pregnant woman. In the case of a virgin, Iddat is not prescribed (See Holy Quran XXXIII.49). The further injunction, not to hide what God had created in their wombs, is also to preserve the purity of the marriage tie. Further research is necessary into this verse and other allied verses, before pronouncing whether marriage with a pregnant woman is void. Since it is not necessary to decide that question in this case, I do not venture to do it. 18. Further research is necessary into this verse and other allied verses, before pronouncing whether marriage with a pregnant woman is void. Since it is not necessary to decide that question in this case, I do not venture to do it. 18. In the case cited supra, the wife admitted that she was pregnant and this was not disclosed to the husband at the time of marriage. Here that is not the case. Therefore, the question whether marriage with a pregnant woman is void or not is left open. However, on the facts of this case, I think the availability of the presumption under section 112 of the Evidence Act has to be considered along with the result of the blood test. 19. The next question is, whether the period of gestation, in this case 220 days, is sufficient. The authorities appear to be well-settled in favour of the petitioner. In Kahan Singh v. Natha Singh A.I.R. 1925 Lahore 414 the marriage was on 2nd August, 1889 and the birth of the child was on 23rd January, 1890. The period of gestation in this case was only five months. It was held that the period was sufficient and the child was found to be legitimate. In that case, reliance was placed on the presumption of section 112 of the Evidence Act. It was thus observed: "The fact that the defendant was born during the continuance of the marriage between his mother and Buta Singh is under section 112 of the Evidence Act conclusive proof that he is Buta Singh legitimate son unless it is shown that Buta Singh and Bholi had no access to each other at any time when he could have been begotten". 20. In Sibt Mohammed v. Mohammed Hameed A.I.R. 1926 Allahabad 589 where a child was born to Muslim parents during the continuance of the valid marriage within six months of the marriage, section 112 was applied and the child was held to be legitimate. In this case, a Division Bench of the Allahabad High Court referring to the decision in Allahdad Khan v. Muhammed Ismail 1888 (10) Allahabad 289 quoted supra, observed that section 112 of the Evidence Act does conflict with the Mohammedan Law but held that they were bound to give effect to the clear provisions of section 112, although they conflict with the rules of Mohammedan Law. 21. 21. In Ponnammal v. Andi Aiyan A.I.R. 1953 T-C. 434 , The Travancore- Cochin High Court was considering the question whether a child, who was born to a married woman after 8 months from the date of her marriage with her husband and the husband alleged that the child was not his, as he was incapacitated from having sexual intercourse for one month, from the date of marriage, due to some operation he had to undergo, the court held that even assuming that the husband was so incapacitated, the time available, over seven months, was sufficient to raise the presumption that he was the father of the child. 22. In Clark v. Clark 1939 (2) All E.R. 59, the period of gestation was only 174 days. The husband sought divorce on the ground of wife adultery. There was no clear evidence of adultery. The only evidence available was the birth of the child within 174 days of the marriage. The medical evidence in that case indicated that a child of so short a period of foetal life would not survive for more than a day or two. The court held that the child was legitimate and that adultery was not proved. 23. The above decisions do not strictly decide the period of gestation as being sufficient or not for the birth of the child. All those decisions proceed on the footing of the existence of a valid marriage during which the child was born, and it was the presumption under section 112 of the Evidence Act that governed the cases more than the calculation of the period of gestation. Hedaya also lends support to the fact that a child born after six months can be considered to be a child born of the wedlock and it is also provided that the term of pregnancy is from six months to two years according to traditions. Therefore, in this case also there is no difficulty in holding that the period of 220 days is sufficient to find the child legitimate since it was born during the continuance of a valid marriage. 24. An attempt was made by the learned counsel for the respondent relying upon the evidence of P.W. 1 that a child of the type we have in this case could not be born within 220 days. 24. An attempt was made by the learned counsel for the respondent relying upon the evidence of P.W. 1 that a child of the type we have in this case could not be born within 220 days. A child born within 220 days, it is contended, cannot be a child of normal size and health. In this case, we have no evidence that the child was born premature or that the child was given any extra care immediately after birth for its survival. Indications, if any, in the evidence of P.W. 1 are to the effect that the child was a normal child. In the absence of a definite case regarding to size, weight etc., of the child, it may not be permissible for me to go into this question in detail and therefore I hold that the period of gestation of 220 days is sufficient for conception and birth of the child. 25. Counsel for the petitioner relied upon two circumstances to show that the respondent had admitted the paternity of the child. Firstly, it was contended that after the birth of the child, there was a mediation and the respondent agreed to pay Rs. 25 as monthly allowance to the child. This is sought to be proved through P.W. 2. If his evidence was satisfactory, it would have been sufficient to base a decision in this case on this aspect. But, unfortunately, P.W. 2 cannot be said to be above reproach. He had taken such interest in the conduct of the case as is not expected of an impartial mediator. He was seen in court during trial giving instructions to the counsel for the wife. As such, it would not be possible to place any reliance on his evidence to find that the respondent had admitted paternity of the child at mediation. 26. This contention incidentally raises the question of acknowledgment of paternity. Acknowledgment is a mode of filiation and may afford the basis in this case to award maintenance to the child. But since the respondent has denied mediation and the evidence on the side of the petitioner is not acceptable, this aspect of the case also cannot be sustained. 27. 26. This contention incidentally raises the question of acknowledgment of paternity. Acknowledgment is a mode of filiation and may afford the basis in this case to award maintenance to the child. But since the respondent has denied mediation and the evidence on the side of the petitioner is not acceptable, this aspect of the case also cannot be sustained. 27. The further question whether the relationship which is, in its inception, illegitimate, can be legitimated also may arise in this case; but since the petitioner has no case that there was any premarital relationship with the respondent the question of legitimation also does not arise. 28. Secondly, it was contended that from the fact that the marriage was dissolved only on 17th May 1972, six months after the birth of the child, it could be inferred that the father had acknowledged the paternity of the child. There is conflicting evidence in this case regarding divorce. P.W. 1 has deposed that divorce took place three or four days after the birth of the child. The respondent own case, put to the petitioner when she was in the witness box was, whether the marriage between him and the petitioner was not dissolved on 17th May 1972. The respondent, in the court below, tried to put forward a custom that no divorce is effected during the pregnancy of the wife. Some support was had for this case from P.W. 1 herself when she was examined in court. I do not see any authority or law in support of this proposition. All that is laid down is, that if divorce is effected during the pregnancy of the wife, period of iddath will last till she has delivered the child. To the same effect is the injunction in the Holy Quran. In, Chapter 6, verse 4 reads: "And the pregnant women, their prescribed time is that they lay down their burden. And whoever keeps his duty to Allah, He makes his affair easy for him."� In verse 6 of the same Chapter, it is thus said: And if they are pregnant, spend on them until they lay down their burden.� These verses indicate that a divorce, though strongly deprecated by the Holy Quran and traditions, is permissible even when the wife is pregnant. At any rate, in this case, the evidence is not conclusive to show that there is any admission on the part of the father acknowledging the paternity of the child and no order can be founded on that ground. 29. The sum total of the discussion above is that the petitioner would normally be entitled to the presumption under section 112 of the Evidence Act, and that the period of 220 days is sufficient period of gestation. But the difficulty that has to be overcome is the disputed fact that the petitioner was pregnant at the time of the marriage; and its consequence on the question of maintenance. A child both legitimate and illegitimate is entitled to maintenance. Ante-nuptial intercourse is ZINA (fornication) in Islam. A child born in this connection is illegitimate. That does not affect his claim to maintenance under the general law. Even if the petitioner was pregnant, if the begetter of her child was the respondent, then the child is entitled to maintenance. But in this case, we have the clear evidence of the petitioner that she did not know the respondent before marriage and there was no connection between them. It is here the result of the blood test becomes relevant. 30. In the court below, the husband filed an application for a blood test of himself, the petitioner and the child to establish the parentage of the child. The husband was willing to subject himself to examination and the wife was not. This conduct on the part of the wife, came for adverse criticism at the hands of the court below and the order refusing maintenance to the child, was based on this conduct of the petitioner. When the matter came up to this court, as indicated above, the parties agreed for the blood test to be conducted. I emphasise the word agreed� since the orders of the court would indicate that the parties did not object to such examination. This has become important in view of the contention that the Forensic Expert has not been examined in the case to prove his certificate. From the conduct of the parties and from the order of this court, I hold that non-examination of the Forensic Expert should not be made the basis of rejecting the report of the blood test. 31. This has become important in view of the contention that the Forensic Expert has not been examined in the case to prove his certificate. From the conduct of the parties and from the order of this court, I hold that non-examination of the Forensic Expert should not be made the basis of rejecting the report of the blood test. 31. It is necessary to consider the effect of the report of the blood tests and its evidentiary value to fix the parentage of the child. It is well settled that the tests have their limitations. A blood test cannot positively establish proof of paternity. It can only exclude a certain individual as the possible father of a child. The negative finding is definite, while positive finding indicates only a possibility. Another man with the same group as the father could be responsible for the child in question. In India, there is no special statute and there is no provision either in the Criminal Procedure Code or in the Indian Evidence Act, empowering courts to direct such a test to be made, and perhaps when a party is unwilling to submit to such a test, the court has no power to direct such a party to submit himself or herself to such a test. 32. The results after examination of the blood sample of the petitioner, Assia, are as follows: Major Group O R.H. Group D. positive. The blood samples of the respondent and the child were also taken and examined. The results are as follows: Respondent-Ayidru Major Group A. R.H. Group D positive. The child-Zainaba Major Group B. R.H. Group D. positive. The Forensic Expert has given his opinion as follows: "I am of opinion that the respondent (Ayidru) could not be the father of the child 33. It has been found from experiments that the blood groups are transmitted from parent to off spring, according to well-established law of inheritance. In Modi Medical Jurisprudence and Toxicology, we have the following table: Blood groups of parents Possible blood group of children O X O O X A O X B A X A A X B B X B O X AB A X AB B X AB AB X AB O O, A O, B O, A OA, B, AB O, B A, B. A, B, AB. A, B, AB. A, B, AB. A, B, AB. A, B, AB. The last column in the above table shows that in a given group of parents, the resultant group of the child would establish the impossibility of the child being the offspring of the person depending on the blood group of the child in the third column. In this case, the blood group of the father and mother are O and A respectively and the possible blood group of the children is O, or A. It can never be B or AB. We have the group of the child to be B. The blood characteristics do not agree with the respondent and hence he has to be ruled out as the putative father. From the above table, it can be said with certainty that the child in question cannot be born in a relationship between the petitioner and the respondent. Maternity not having been disputed, paternity of the respondent has to be ruled out. 34. In Medical Jurisprudence and Toxicology by John Glaister (11th Edition), at page 335, we have the following table: Group of parents Groups of children Exclusion cases O X O O X A O X B A X A A X B B X B O O, A. O, B. O, A. O, A, B, AB. O, B. A, B, AB. B, AB. A, AB. B, AB. .. A, AB. From the above also, it is seen that for groups of persons O x A, the groups of children are O or A and not B or AB. Thus it could be seen that in this case the respondent paternity can be excluded. 35. The rule that emerges from the investigation conducted by eminent scientists is, that unless either of the parents have the group seal in the child, it cannot be said that the child was born in connection between these two. There are three possible disputes that can arise about the paternity: (1) when the child was born in a lawful wedlock and the husband denies that he is the father of the child; (2) when the child is born out of lawful wedlock but mother accuses certain individual as the father of the child while that man denies the accusation and (3) when a woman pretends pregnancy and delivery and obtains a child to pass it off as her own. We are concerned here with the first case. We are concerned here with the first case. Determination of the blood groups of the parties concerned cannot establish that a particular man is the father of the child. All that is possible is to affirm by a process of exclusion that a certain individual cannot be the father of the child. 36. The following passage from Modi Medical Jurisprudence and Toxicology is relevant. it cannot be said by the determination of blood groups of the parties concerned, that a particular man is the father of a given child, but it may be possible to affirm by a process of exclusion that he cannot be the father of the child. The importance of this means of establishing non-paternity is obvious and has its application insults of maintenance of illegitimate children and in suits of nullity, alleged adultery and black-mailing.... � Wigmore on Evidence, III Edition, in Vol. I, section 165-a (page 610 and following) sums up blood groups as evidencing paternity as follows: "In one specific biological trait viz., blood-groups, scientific opinion is now in accord in accepting the fact that there is a causative relation between the trait of the progenitor and the trait of the progeny. In other words, the blood-composition of a child may be some evidence as to the child paternity. But thus far this trait (in the present state of scientific discovery as generally accepted) can be used only negatively, i.e., to evidence that a particular man is not the father of a particular child C. The biological data that permit this inference are complete"� The progress of science in this field has made it possible from time to time to increase the range of cases that afford decisive proof, both negative and affirmative. Judicial decisions on the contrary have accepted the use of blood- group composition to evidence paternity negatively. Normally, the expert should testify. But in this case, for reasons mentioned above, I hold non-examination of the expert does not render Ext. C1 inadmissible. In this case therefore from the report of the Forensic Expert, which is marked by me as Ext. C1, the paternity of the respondent has necessarily to be excluded. 37. I have held that the presumption under section 112 would be available to the petitioner and also that the period of gestation in this case is sufficient. C1 inadmissible. In this case therefore from the report of the Forensic Expert, which is marked by me as Ext. C1, the paternity of the respondent has necessarily to be excluded. 37. I have held that the presumption under section 112 would be available to the petitioner and also that the period of gestation in this case is sufficient. The dismissal of the petition on the basis of the results of the blood test may appear seemingly conflicting with the above two findings. But I have indicated fairly well that those findings are subject to the findings that are to follow. Though section 112 of the Evidence Act trenches upon certain regions of the Muslim Personal Law, the principle embodied in this section is an extremely salutary one, since it saves the progeny from the stigma of bastardisation. In this case, am persuaded to give benefit of the result of the blood test to the respondent because of the highly suspicious conduct of the petitioner in the court below, which created considerable doubt in me about the truth of her case, which doubt gave place to a strong conviction with Ext. C1 report. On a consideration therefore of these aspects of the case, it has necessarily to be found that the blood test rules out the possibility of the respondent paternity of the child. In the result, the criminal revision petition is dismissed.