JUDGMENT 1. - This revision petition has been filed by the petitioner, Ramchander, against the order dated 27th February, 1975, passed by the, District Judge, Sri Ganganagar, whereby. the District Judge rejected the application filed by the petitioner far directions regarding obtaining the sample of the blood of the respondent and her two children for the purpose of testing to establish the paternity of the children. The facts relating to the filing of the revision petition are briefly as under : 2. The petitioner and the respondent were married to each other in 1959. During the course of the wedlock, two children were been to the respondent, one in October, 1970 and the other in January, 1973. On 2nd June, 1973, the petitioner filed a petition under Section 13 of the Hindu Marriage Act against the respondent in the court of District Judge, Sri Ganganagar for dissolution of the marriage on the ground that respondent had committed adultery. In the aforesaid petition, the petitioner has pleaded that respondent had given birth to two children although the petitioner had never any access to the respondent and bad never had sexual intercourse with her. The averments contained in the said petition have been denied by the respondent in her written statements who has pleaded that both the children were begotten by the petitioner. During the pendency of the aforesaid proceedings, the petitioner on 23rd August, 1974, filed an application before the District Judge, wherein he submitted that the paternity of the two children can be established by the blood grouping of the petitioner and the respondent and the two children, at d he, therefore, prayed that direction may be given to the respondent to permit samples of blood being taken from her person and from both the children for the purpose of having the same tested for the purpose of blood grouping. The said application was opposed by the respondent on the ground that blood grouping cannot conclusively establish that the two children were not begotten by the petitioner. The learned District Judge, by his order dated 27th February, 1975, rejected the said application filed by the petitioner on the following two grounds: (1) Blood grouping does not provide a positive test that the children are or are not of the petitioner. (2) The respondent cannot be compelled to submit to such test. The learned District Judge, by his order dated 27th February, 1975, rejected the said application filed by the petitioner on the following two grounds: (1) Blood grouping does not provide a positive test that the children are or are not of the petitioner. (2) The respondent cannot be compelled to submit to such test. Aggrieved by the aforesaid order passed by the District Judge, the petitioner has filed this revision petition. 3. Shri Rajendra Mehta, the learned counsel for the petitioner, has challenged the correctness of both the aforesaid grounds given by the learned District judge for rejecting the application filed by the petitioner. The learned counsel has submitted that according to the medical science, an examination of the blood groups of the parents and children can conclusively establish that the child could not be begotten by the parents. As regards the second ground giver, by the leaned District judge for rejecting the application, the learned counsel for the petitioner concedes that the respondent cannot be compelled to submit to a test but he submits that the court can direct the respondent to submit to a test and in case she refused to comply with the said direction, an adverse inference can be drawn against her. 4. Text books on Medical jurisprudence show that the rapid progress in the study of different blood groups has revealed that no blood group antigen can appear in a child unless it is present in either or both of the parents and that an antigen from a homozygon blood group must appear in the blood of a child and, therefore, blood grouping tests afford a reliable objective evidence in disputed paternity cases has stated : "In one specific biological trait, viz-blood-group, scientific opinion is now in, accord- 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's 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 P is not the father of a particular child C." 5. In other words, the blood composition of a child may be some evidence as to the child's 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 P is not the father of a particular child C." 5. In 1965, in Taylor's Medical jurisprudence, it was observed that in the Scandinavian countries, in Germany and in some North American States the use of blood grouping methods in the exclusion of paternity has become an approved court procedure but in so far as English and Scottish courts were concerned the said practice was achieving a tardy acceptance. Since then the matter has come up for consideration before the House of Lords in S v. S, 1970 (3) All ER 107 and in the said case Lord Reid has observed: "Blood tests have now been used extensively for many years in many countries and it is now generally recognised that if a test is properly carried out by a competent serologist, its results ore fully reliable. I think that it is now common knowledge that blood is a very complex substance, that different persons' blood may have a variety of different constituents or characteristics, and that those constituents or characteristics must have been derived from one or other parent. I suppose that there can be mutations of the kinds that are found throughout the animal and vegetable kingdoms. But mutations are so rare that their possibility can be neglected, because we are not looking for absolute certainty but only a sufficient degree of probability. So if it is found that a child's blood has some constituent or characteristic that is absent from the blood of both husband and wife the husband cannot be the father, the child must have derived that constituent or characteristic from some other man who was its father." 6. In W v. W, 1970 (1) All ER 1157 Lord Denning has observed that if the blood of the husband, wife and child was tested, there is a 70 percent chance that the husband could be shown rot to be the father. The use of blood tests in deter mining paternity has now received legislative recognition in England in the Family Law Reforms Act, 1969 enacted by the British Parliament. The use of blood tests in deter mining paternity has now received legislative recognition in England in the Family Law Reforms Act, 1969 enacted by the British Parliament. Section 20 of the said Act enables the court to give directions with regard to use of blood tests in any civil proceeding in which the paternity of any person fails to be determined. 7. In India, the matter has been considered at length by a learned Judge of the Madras High Court in Suboyya Counder v. Bhoopala, AIR 1959 Mad. 366 . In the said case it is laid down that in a special case it may be possible by the test to disprove the alleged paternity of a particular person but in no case will it be possible to prove by the test the paternity of a particular person. Similarly a learned Judge of the Kerala High Court in Vasu v. Santha, 1975 Ker. LT 533 has observed:- "Medical science has developed very much and it is said that on an analysis of the blood groups of the husband and children if it is found that a child's blood has some constituent or characteristic that is absent from the blood of both husband and wife the husband cannot be the father. " 8. It must therefore, be hell that the learned District judge was only partially right in taking the view that blood grouping does not provide a positive test that the children are or are not of the petitioner. While it may not be a positive test to show that the children are of the petitioner, it can be said hat blood grouping can afford positive test to show that the children are not of the petitioner. The first ground given by the District Judge for rejecting the application submitted by the petitioner cannot be upheld. 9. The second ground given by the District Judge for rejecting the application of the petitioner was that the respondent cannot be compelled to submit to a blood test. It appears that the District judge has failed to note that in his application the petitioner had sought directions for samples of blood to the taken from person of the respondent as well as from both the minor children, who are in the custody of the respondent. It was necessary for the District judge to have considered both the requests. It appears that the District judge has failed to note that in his application the petitioner had sought directions for samples of blood to the taken from person of the respondent as well as from both the minor children, who are in the custody of the respondent. It was necessary for the District judge to have considered both the requests. The District Judge has only considered the question as to whether a direction could be given by the court to the respondent to give a sample of her blood for the purpose of testing but the District Judge has not considered the question as to whether a similar direction could be given by the court with regard to the testing of the blood of the two children. I propose to deal with both the aspects of the case. 10. I will first take up the question whether the court can give a direction to a party to a proceeding before it to allow a sample of blood being taken from his or her person for the purpose of testing. Neither in the Cade of Civil Procedure, nor in the Indian Evidence Act, nor in the Hindu Marriage Act or the rules framed there under, is any express power conferred on the Court to direct a party to a proceeding to under go medical examination or to permit a sample of blood being taken from his or her person without his or her consent. Can such a direction be given by the Court in exercise of its inherent powers? This question has arisen in England because prior to the enactment of the Family Laws Reform Act,1969 there was no provision in any law which empowered the court to give a direction to a party to allow a sample of blood being taken for his or her person for the purpose of testing. In W v. W (No 4) the Court of Appeal has laid down that the Cour t has no power to direct the wife to undergo a blood test against her consent. In S v. S the House of Lords (Lord Reid, Lord Hodson and Lord Guest) has affirmed that a person of full age and capacity cannot be ordered to undergo a blood test against his will on the principle that such an order would amount to interference with his personal liberty. In S v. S the House of Lords (Lord Reid, Lord Hodson and Lord Guest) has affirmed that a person of full age and capacity cannot be ordered to undergo a blood test against his will on the principle that such an order would amount to interference with his personal liberty. But inspite of the fact that the Court has no power to direct a person to undergo a blood test against his consent the English courts have given directions to a party before them to undergo a blood test in exercise of, what has been described by Lord Mac Dermott in the judgment of the House of Lords in S v. S. (4), "the ancillary jurisdiction" of the court. According to Lord Mac Dermott it is a jurisdiction which confers power, in the exercise of a judicial discretion, to prepare the way by suitable orders or directions for a just and proper trial of the issues joined between the parries and it can be made effective by indirect means such as stay of proceedings, attachment or treatment of a refusal to comply as evidence against the disobedient party. In Re , 1968 (i) All ER 20 Lord Deming has laid down that if an adult unreasonably refuses to have a blood test it is open to the court in any civil proceedings to treat his refusal as evidence against him and may draw an inference therefrom. The Family Laws Reform Act, 1969 affirms the (9) 1968 (I J 0 ER 20 same principle. Section 20 of the said Act empowers the court in any civil proceedings in which the paternity of any person falls to be determined by the Court, to give a direction far the taking of blood samples from the person whose paternity falls to be determined, the mother of that person and any party alleged to be the father of that person for the purpose of blood tests. Section 21 lays down that the blood sample which is required to betaken from any person for the purpose of giving effect to a direction under Section 20 of the Act shall not be taken from that person except with his consent and Section 23 provides that in the event of failure of a person to comply with the direction for taking blood tests the Court may draw such inferences, if any, from that fact as appear proper in the circumstances. 11. The position in India is the same as it was in England at the time of the enactment of the Family Laws Reform Act, 1969 Right to personal liberty has been recognised as a fundamental right under Article 21 of the Constitution which declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. As pointed our earlier there is no provision in the Code of' Civil Procedure, the Evidence Act or the Hindu Marriage Act which empowers the court to direct the sample of blood being taken from a per son against his consent for the purpose of blood tests. It must, therefore, be held that the court has no power to direct the sample of blood being taken from any person against his consent. I find myself fortified in taking this view by the decision of the Mad, as High Court in Ven kataswarlu v. Subhayya, AIR 1951 Mad. 910 & the Kerala High Court in Vasu. v. Santha, 1975 Ker. LT 533 . 12. On the question whether any direction can at all be given by the court to a person to undergo medical examination or to allow, a sample of blood being taken from his person, there is no unanimity of opinion amongst the various High Courts. The Calcutta High Court in Birendra Kumar Biswas v Hemlata Biswas, AIR 1921 Cal. 459 has laid down that Court has the power to direct the medical examination of the person of the respondent subject to such conditions as will afford protection from violence to natural delicacy and sensibility. In that case the respondent had not objected to the medical examination. In the Madras High Court one Learned Judge in Venkataswarlu v Subbay, AIR 1951 Mad. In that case the respondent had not objected to the medical examination. In the Madras High Court one Learned Judge in Venkataswarlu v Subbay, AIR 1951 Mad. 910 has taken the view that the Court cannot make an order directing the examination of the plaintiff by a medical expert for the purpose of taking some blood from him for the purpose of testing in a case where the plaintiff was not prepared to offer his blood for such a test. Another learned judge of the Madras High Court in Subbayya Gounder v Bhoopala, AIR 1959 Mad. 366 , has, however, laid down that the Court can give a direction to a party to give a sample of his blood for testing and the only consequence of his refusal will be that it will be taken in to consideration, along with the circumstances, in evaluating the evidence against him A third Judge in Rangonathan Chettiar v. Chhinna Lakshmi Acht, AIR 1955 Mad. 546 , while laying down, that the court cannot compel a party to be examined by a doctor against his or her consent, has observed that the court might draw any adverse inference against a party who refused to examine himself or herself. The decision of the Madras High Court in Venkataswarlu v. Subhayya, AIR 1951 Mad. 910 , has been followed by the Andhra Pradesh High Court in Sreermarurthi v. Lakshaikanthan, AIR 1955 AP 207 and the Gujarat High Court in Bipan Chandra v dlodhuri Ben, AIR 1963 Guj. 250 , and it has been laid down that the court has no jurisdiction to direct the medical examination of a part). The Gujarat High Court has further observed that if the Court has no jurisdiction to order medical examination of a party then it would be wrong for the court to draw any adverse inference against any party who refuses to sub. mir to an illegal order The Punjab & Haryana High Court in Shanti Devi v. Ramnat, 1972 Punj. & Har, 270 has laid down that even though the court cannot physically force the husband to undergo observation at the mental Hospital but the court can draw any adverse inference against him, which is available under the Law, for his not doing so. In Vasu v. Sintha, 1975 Ker. & Har, 270 has laid down that even though the court cannot physically force the husband to undergo observation at the mental Hospital but the court can draw any adverse inference against him, which is available under the Law, for his not doing so. In Vasu v. Sintha, 1975 Ker. LT 533 , the Kerala High Court while upholding the order of the trial court refusing to allow the application of the plaintiff for a blood test of himself and the children, has observed that the maximum that can be done where a party refuses to have blood test is to draw an adverse inference. 13. In my view the "ancillary jurisdiction" which is exercised by the courts in England is equally available to the courts in India and for a just and proper trial of the issues joined between the parties before it, the court, in the exercise of its judicial discretion, can pass suitable orders or directions, including an order directing sample of blood to be taken from a person for the purpose of testing and if the person so directed unreasonably refuses to allow the sample of blood being taken from his person it would be open to the court to treat his refusal as evidence against him and to draw inference therefrom. 14. The second ground given by the learned District Judge, for rejecting the application filed by the petitioner, viz , that the respondent cannot be compelled to submit to the test of blood grouping, cannot, therefore, be upheld. The District Judge could have passed an order directing the respondent to permit sample of blood being taken from her person and if the respondent had unreasonably refused to allow sample of blood being taken from her person, the court could have drawn an inference against her. But, as observed by the Kerala High Court in Vasu v. Sintha, 1973 Ker. LT 533 such an adverse inference would have been of very little relevance in the present case where the petitioner has to dislodge the conclusive presumption arising under Section 112 of the Evidence Act by proving by positive evidence, that he had no opportunity to have any sexual intercourse with the wife at a time when the children could have been begotten. 15. 15. This, however, does not conclude the matter because the question which still remains for consideration is whether a direction could be given on the application of the petitioner for allowing sample of blood being taken from the person of the two children who are in the custody of the respondent. 16. With regard to the giving of direction by a Court for taking the sample of blood of a minor child in cases where the paternity of the child is in issue, the practice followed by the English Courts is that such a direction can be given only if the ordering of the blood test would be of any possible benefit to the child. In M (D) v. M (S) and C (16) Lord Denning, while dealing with a similar case, has observed : "If it were possible, by means of a blood test, to show that the husband was the father, it might be to the child's benefit but it cannot show that. This is not a case where one of the two known men is the father. The only known man is the husband. There is a 70 percent, chance that it may show that the husband was not the father. But, if that is shown, what good is it to the boy ? It would only show that he is illegitimate and that the wife was telling lies when she said that the husband was the father. That does the boy no good." "In this situation, I cannot help thinking that the sole reason why the husband wants a blood test is to prove that the wife was guilty of adultery over ten years ago. Now in most cases it is best to know the truth; and I think the courts should help in the ascertainment of it, by ordering a blood test, if it is of any possible benefit to the infant But I do not think the infant should be made a pawn in a contest between husband and wife not, at any rate in the case of an infant of ten who can understand what is happening." 17. In S v. S (4)' the House of Lords, while upholding the principle that interest of the child must govern the exercise of the power of the court to order the taking of sample of blood for testing, has taken note of the changes which have occurred in England in the standards of marriage and family relation ships and the legislation which have reflected these changes by reducing the principle of legitimacy to a matter of probability, and the fact that the legal incident of being born a bastard are now almost non-existent, and has held that it would be in the best interest of the child in most cases that paternity doubts should be resolved on the best evidence and has upheld directions for obtaining samples of blood from the child for the purpose of blood tests. I am not inclined to hold that the social structure of our society justifies our adopting the approach adopted by the House of Lords in England. 18. As observed by the Kerala High Court in Vasu v. Santha (7), in India the stigma of illegitimacy is very severe and we do not have any of the protective legislations as in England to protect illegitimate children. I would, therefore, prefer to go by the tests laid down by Lord Denning in R (D) v. (S) & G, 1969 (3) All ER 243 and hold that it would not be in the interest of the child to permit a sample of blood to be taken from his person for the purpose of testing to show that he is illegitimate. Cases may a arise where two rival sets of parents claim the child to be their or a child has been kidnapped and his parentage has to be determined. In my view in such a case it would be in the interest of the child to establish his real parentage and for that purpose direction can be given by the court for taking a sample of blood from his person for the purpose of testing. 19. In the present case one female child was born to the respondent in October, 1970 and another female child was born in January, 1973 and, ever since their birth, both the children have been living with the respondent. 19. In the present case one female child was born to the respondent in October, 1970 and another female child was born in January, 1973 and, ever since their birth, both the children have been living with the respondent. Any direction for obtaining samples of blood of the children for the purpose of testing in order to establish that the petitioner is not their father, would not, in any way, benefit the children. On the other hand it may, cause irreparable harm to them. No direction could therefore be given for obtaining the samples of blond of the children for the purpose of testing. If no direction could be given for obtaining the samples of blood of the children, there was no point in giving a direction to the respondent to allow a sample of blood to be taken from her person for the purpose of testing because the paternity of the children cannot be established without obtaining the samples of blood of the children. 20. In my opinion, although the District Judge was not right in rejecting the application submitted by the petitioner for the reasons given by him in his orders, the said application of the petitioner cannot be allowed for the reasons mentioned above. This revision petition is, therefore, dismissed. As the respondent did not appear to contest this revision petition in this Court, there will be no order as to costs.Writ dismissed. *******