( 1 ) THESE two criminal petitions - Crl. P. No. 2694 and 2695 of 2005 are filed against the common order passed by the learned III Additional sessions Judge, Kurnool, at Nandyal in Crl. R. P. Nos. 19 and 22 of 2005, respectively. The parties herein Would be referred to us they are arrayed before the trial Court. ( 2 ) THE facts of the case are: First petitioner, Kamarthi Rajeswari and the second petitioner, Kamarthi Jyothi have filed M. C. No. 5 of 2004 under section 125 Cr. P. C, against the respondent claiming maintenance. During the pendency of maintenance proceedings, the respondent/husband filed Crl. P. No. 849 of 2005 under section 45 of the indian Evidence Act for sending the second petitioner for DNA test for ascertaining her parentage contending that he is an impotent and the second petitioner is not born to him. He also filed Crl. M. P. No. 1469 of 2004 under section 311 Cr. P. C, to summon the Doctor by name, P. Srinivasulu, to prove that he (the respondent) is impotent. Both the petitions are dismissed by the learned Magistrate and against the order in Crlm. P. No. 849 of 2005 the respondent filed Crl. K. P. No. 19 of 2005 and Crl. R. P. No. 22 of 2005 against the order in Crl. M. P. No. 1469 of 2004 before the learned III Additional Sessions Judge, Kurnool at Nandyal. ( 3 ) IT is the case of the petitioners that the first petitioner was married to the respondent on 8-1-1993 at Anjaneyaswamy Temple, near RTC Busstand, Nandyal, as per Hindu rites and customs. They lived happily for some time and during their wedlock the second petitioner was born. Later the respondent ill-treated and neglected the petitioners and therefore, they initiated maintenance proceedings. The respondent refuted the claim of the petitioners contending that the first petitioner never lived with him; that he is impotent and that the second petitioner did not born to him,. After PW-1 was examined, the respondent filed criminal petitions, as referred to above. ( 4 ) IN the orders of both the learned Magistrate, as well as the learned Sessions Judge, it is stated that the respondent denied the marriage between himself and the first petitioner. On a direction of this Court, acro. After PW-1 was examined, the respondent filed criminal petitions, as referred to above. ( 4 ) IN the orders of both the learned Magistrate, as well as the learned Sessions Judge, it is stated that the respondent denied the marriage between himself and the first petitioner. On a direction of this Court, acro. ss the Bench, the learned counsel for the respondent (petitioner herein) filed a copy of the counter filed in maintenance case, which shows there is no denial of the marriage. Copy of the counter forms part of these criminal petitions. ( 5 ) CR. R. P. NO. 19 of 2005 was dismissed by the learned Sessions judge relying on certain decisions and holding that the second petitioner cannot be compelled to under go DNA test and Crl. R. P. No. 22 of 2005 was dismissed holding that at the earliest point of time in the maintenance proceedings, the respondent did not take the said plea. ( 6 ) NOW, the point for consideration is whether there are any grounds to allow the criminal petitions. ( 7 ) BOTH the petitions are filed by the respondent-husband stating that as he is impotent, there was no question of the second petitioner, daughter being born to him and as such he is not liable for maintenance. He further wants that he be declared as an impotent by examining the Doctor, for which he wanted to summon the Doctor. He also wanted to say that the second petitioner is not born to him, which can be cleared through DNA test. ( 8 ) IN the counter filed by the respondent, in the main petition, what is stated that the marriage was not consummated; immediately after the marriage, on the very first day, she went away and stayed with her parents and never lead marital life with the respondent at any time and the allegation that the first petitioner-wife got separated from the respondent on account of the torture is also denied. In paragraph - 5 of the counter, it is specifically stated that the wife never lived with him and from the inception of the marriage day, she lived with her parents, as he was not fit for sexual inter course; the first wife of the respondent eloped away with some other person for that reason; the first petitioner is no other than his sisters daughter and she lived separate from him since twenty years and never lived with him at any time. ( 9 ) THUS in the counter filed in the main petition, he admitted the marriage and the marriage took twenty-one years ago. The second petitioner-daughter is now aged about eighteen years. There is no material on record to show that for all these eighteen years or some time earlier to filing of the miscellaneous petition, anywhere he took the plea that the second petitioner is not born to him. ( 10 ) IF the respondent, the petitioner herein, is impotent, there was no justification for him to marry repeatedly. As per his counter, his first wife eloped away with some one, as he is impotent. In spite of that he married again. Either way he is at fault i. e. , if he is speaking false saying that he is impotent or even if he is really impotent also. In case he is not impotent and is giving false evidence, he is liable and if he is impotent and for his fallacy of marrying again and again also he is liable for ruining the lives of others. ( 11 ) NOW he is aged fifty years and his undergoing impotency test now may not serve any purpose; as it is possible that now he has become impotent and it may not be a proof that he was impotent at the time the second petitioner was born. Thus, absolutely there are no grounds for examining Medical Officer to prove his impotency. ( 12 ) AS far as DNA test is concerned, as referred, for the last eighteen years, he has never taken the plea, any where that the second petitioner was not born to him. Tt can be contended that as there was no occasion for him, he has not taken such a plea. ( 12 ) AS far as DNA test is concerned, as referred, for the last eighteen years, he has never taken the plea, any where that the second petitioner was not born to him. Tt can be contended that as there was no occasion for him, he has not taken such a plea. But when a daughter was born to his wife, allegedly with some one, there must be some material to show that he has taken some steps to question the same. In case, he has not taken any such steps, he has to find fault with himself. He could have filed a divorce petition on the ground of adultery of his wife. After eighteen long years, now subjecting the child for DNA test is not justified, as, for all these years, the second petitioner was recognized as his daughter. ( 13 ) THE Honble Supreme Court in Kamti Devi v. Poshi Ram AIR 2001 SC 2226 , relying on an earlier decision iin Goutam Kundu v. State of West bengal AIR 1993 SC 2295 held that when a child is born during the subsistence of a valid marriage that would be conclusive presumption that the child is of the husband and it cannot be rebutted by DNA test. In paragraphs -10,11 and 12 of the Judgment, the Honble Supreme Court held: "but, Section 112 itsslf provides an outlet to the party who wants to escape from the rigor of that conclusiveness. The said outlet is, if it can be slown that the parties fiad 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. Normally, the rule of evidencs in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison detre is the legislative concern against the illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents. The raison detre is the legislative concern against the illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents. We, may remember that Section 112 of the Evidence act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result cf the genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the condusiveness of Section 112 of the Act. Eg. , 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 condusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband, who would be compslled to bear the fatherhood of a child of which he may be innocent. Rut even in such a case the law leans in favour of Ihe innocent child from being bastardized 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. Whether the burden on the husband is as hard as the prosecution to prove the guilt of the accused in a trial deserves consideration in the above background. The standard of proof of prosecution to prove the guilt beyond any reasonable doubt belongs to criminal jurisprudence whereas the test of preponderance of probabilities belongs to civil cases. The reason for insisting on proof beyond reasonable doubt in criminal cases is to guard against innocent being convicted and sent to jail if not to extreme penalty of death. It would be too hard if that standard is imported in a civil case, for a husband to prove non-access as the very concept of non-access is negative in nature. But at the same time the test of preponderance of probability is too light as that might expose many children to the. peril of being illegitimatized. It would be too hard if that standard is imported in a civil case, for a husband to prove non-access as the very concept of non-access is negative in nature. But at the same time the test of preponderance of probability is too light as that might expose many children to the. peril of being illegitimatized. If a Court declares that the husband is not the father of his wifes child, without tracing out its real father the fall out on the child is ruinous apart from all the ignominy visiting his mother. The bastardized child, when grows up would be socially ostracized and can easily fall into wayward life. Hence, by way of abundant caution and as a matter of public policy, law cannot afford to allow such consequent befalling an innocent child on the strength of a mere tilting of probability. Its corollary is that the burden of the plaintiff-husband should be in higher than the standard of preponderance of probabilities. The. standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff-husband. " As observed by the Honble Supreme Court, the consequences of the dna test after such length of time would be disastrous, particularly, to the child. ( 14 ) INCASE he (the respondent) was really impotent and the child was not born to him, the respondent ought not to have kept quite, when the child was born. After several years, he cannot raise a dispute with regard to paternity of the child, but has to accept the paternity of the child. The respondent is at fault in getting married fully knowing that he is impotent, if he was really impotent and in again marrying after his wife eloped with somebody on account of his impotency. ( 15 ) FOR all these reasons 1 am of the considered view that there are no merits in these petitions and they are liable to be dismissed. ( 16 ) IN the result both the criminal petitions are dismissed.