O R D E R This Criminal Petition is filed by the petitioners in M.C.No.14 of 2002 on the file of the Judicial Magistrate of First Class, Kothavalasa, praying to quash the order in M.P.No.867 of 2003, dated 29-09-2003. 2. The petitioners filed the M.C. under Section 125 of Cr.P.C. for maintenance claiming that the first petitioner is the wife and the petitioners 2 and 3 are the legitimate children of the first respondent. The first respondent contended that immediately after the marriage, he left the village and there was no consummation of marriage between him and the first petitioner and the petitioners 2 and 3 were not born through him, therefore, he filed an Application requesting the Court to send their blood samples for DNA test. The petitioners vehemently opposed the said Application and the lower Court dismissed the application by observing that after placing sufficient material to show that there was no access to the first respondent against the first petitioner, it has to be considered whether the case requires DNA test. The first respondent once again filed the present petition requesting for DNA test and it is vehemently opposed by the petitioners on the ground that the Court cannot compel them to give blood samples for DNA test to test the paternity of petitioners 2 and 3 as that of the first respondent. The learned Magistrate ordered for DNA test directing the petitioners to give blood samples. The petitioners, being aggrieved by the order of the lower Court, preferred the present Petition. 3. The learned counsel for the petitioners submitted that the petitioners are not inclined to give blood samples and the Court cannot compel them to give the blood samples for the purpose of DNA test. He also relied on the Judgment of the Supreme Court in GOUTAM KUNDU v. STATE OF WEST BENGAL(1), wherein the Supreme Court, while examining the aspect regarding the permissibility of conducting blood test to prove the paternity, held as follows: “Section 112 requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or nonexistence of opportunities for sexual intercourse; it does not mean actual cohabitation. It is a rebuttable presumption of law under S. 112 that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. “Access” and “non-access” mean the existence or nonexistence of opportunities for sexual intercourse; it does not mean actual cohabitation. It is a rebuttable presumption of law under S. 112 that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by mere balance of probabilities. Thus following is the position as to permissibility of blood test to prove paternity. (1) That Courts in India cannot order blood test as a matter of course. (2) Wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under S. 112 of the Evidence Act. (4) The Court must carefully examine as to what would be the consequence of ordering the blood test’ whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis.” 4. He also relied on another Judgment in KAMTI DEVI v. POSHI RAM (2) wherein the Supreme Court, while considering the scope of Section 112 of the Evidence Act, held as follows: “S. 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. The result of a genuine DNA test is said to be scientifically accurate. 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. 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 S. 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 unrebuttable. 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 bastardized if his mother and her spouse were living together during the time of conception.” 4. In view of the above decisions, no party can be compelled to give blood samples for the purpose of DNA test. As the petitioners are not inclined to give blood samples, the Court can apply Section 112 of the Evidence Act and draw a presumption after considering the evidence placed by both parties. 5. In the result, the Criminal Petition is allowed. The order of the lower Court dated 29-09-2003 is set aside giving liberty to the lower Court to draw a presumption under Section 112 of the Evidence Act after considering the evidence adduced by both parties. --X—