JUDGMENT Arun Chandra Upadhyay, J. 1. By filing this revision petition the petitioner has prayed for setting aside the impugned order dated 13.8.12 passed by the learned Munsiff, No. 1, Jorhat, in Petition No. 1604/10 arising out of T.S. No. 13/2010. Heard Mr. P.P. Dutta, learned counsel for the petitioner. None appears on behalf of the respondents, despite service of notice. 2. Mr. Dutta, learned counsel for the petitioner, justifying the requirement of DNA test of the child born to Respondent No. 1, submitted that in order to ascertain the paternity of the petitioner, scientific test would be more appropriate and effective, in the facts and circumstances of the case. Learned counsel for the petitioner pointed out that the decisions relied upon by the learned trial Court in the impugned order dated 12.8.12, while rejecting the prayer of the petitioner for carrying out DNA test to ascertain the paternity of the child born to the Respondent No. 1, is not at all applicable in the facts and circumstances of the case, since the petitioner never had any relationship as husband and wife with the respondent No. 1. 3. Accusation against the plaintiff/petitioner was for committing rape on the victim/Respondent No. 1. An investigation was launched in terms of the FIR lodged by the victim/respondent No. 1 and consequent upon which charge-sheet was submitted against the accused-petitioner alleging commission of offence under Section 376/307/417 of IPC. Trial ensued Subsequently, the trial Court, on conclusion of the trial, acquitted the accused-petitioner from the charge aforesaid. 4. However, in the meantime, in a proceeding under Section 125 of Cr.P.C. filed by the victim/respondent No. 1, the child born to the victim/respondent No. 1, during the pendency of the trial of the rape case slapped on the accused, was considered to be the son of the petitioner Accordingly, the petitioner was directed to make payment of Rs. 1000/-, per month, for the illegitimate child, born to the respondent No. 1. 5. The petitioner filed a suit in the Court of learned Munsiff No. 1, Jorhat, for declaration that the plaintiff/petitioner is not the father of the defendant No. 2 i.e. the child born to the respondent No. 1. 6. 1000/-, per month, for the illegitimate child, born to the respondent No. 1. 5. The petitioner filed a suit in the Court of learned Munsiff No. 1, Jorhat, for declaration that the plaintiff/petitioner is not the father of the defendant No. 2 i.e. the child born to the respondent No. 1. 6. During pendency of the said suit, a petition was filed by the plaintiff/petitioner, praying for a direction to the defendants to go for a scientific DNA test to ascertain the paternity of the child i.e. Respondent No. 2. The prayer of plaintiff/petitioner in the suit was rejected by the trial Court by passing the impugned order. Hence, this revision petition. 7. Learned counsel for the petitioner by referring to a decision of the Hon'ble Supreme Court reported in AIR 2001 SC 2226 : (2001) 5 SCC 311 ((Kamti Devi (Smt.) & Anr. Vs. Poshi Ram) submitted that the 'access' to a lady discussed under Section 112 of the Evidence Act means actual sexual intercourse between the spouses. According to the learned counsel for the petitioner, the above decision of the Supreme Court would not be applicable in the present case since, admittedly, the petitioner was not the husband of the victim/respondent No. 1. 8. Learned counsel for the petitioner submitted that the decision rendered by the Apex Court in Gautam Kundu Vs. State of West Bengal & Anr. reported in (1993) 3 SCC 418 can not be pressed for service in the present case, since the plaintiff/petitioner and Respondent No. 1, admittedly, never had the relationship of husband and wife. 9. Learned counsel for the petitioner referring to a decision of the Apex Court reported in 2003 (4) SCC 493 (Sharda Vs. Dharmpal) pointed out that Gautam Kundu (supra) is not an authority for the proposition that under no circumstances Court can direct blood tests to be conducted. The relevant observation of the Apex Court, reads as below: 38. In Goutam Kundu v. State of W.B. this Court while dealing with a question about the paternity of a child noticed the provisions of Section 112 of the Evidence Act and held that the presumption arising thereunder can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. It was held: (SCC p. 428, para 26) 26. It was held: (SCC p. 428, para 26) 26. From the above discussion it emerges- (1) that courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers 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 Section 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. 39. Goutam Kundu 5 is, therefore, not an authority for the proposition that under no circumstances the court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regards mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child. 10. Referring to another decision of the Division Bench of Delhi High Court passed in FAO(OS) No. 547/11 (Rohit Shekhar Vs. Narayan Dutt Tiwari & Anr.) learned counsel for the petitioner submitted that paternity of a child is to be established by science and not by legal presumption or inference or by a long and acrimonious trial. The relevant paragraph of Rohit Shekhar (supra), is extracted below: 26. Though in the light of what we have held, it is not strictly relevant, but we are unable to restrain ourselves from recording what the Court of Appeal (Civil Division) observed in Re H and A (Children) (Paternity: Blood Tests) [2002] EWCA Civ 383:- Over thirty years ago in his speech in S v Mc C Lord Hodson said: "The only disadvantage to the child which is put forward as an argument against the use of a blood test, not for therapeutic purposes but to ascertain paternity, is that the child is exposed to the risk that he may lose the protection of the presumption of legitimacy. Without seeking to depreciate the value of this presumption it is, I think, fair to say that whatever may have been the position in the past the general attitude towards illegitimacy has changed and the legal incidents of being born a bastard are now almost non-existent. I need not dilate upon this, for I recognise that it is impossible to say that there is no stigma of bastardy even though it be no more than the indirect stigma of the imputation of unchastely to the mother of the child so described. On the other hand, it is difficult to conceive of cases where, assuming illegitimacy in fact, it is to the advantage of the child that this legal status of legitimacy should be preserved only perhaps to be displaced by firm evidence of illegitimacy decided later in his or her life from a blood test. The interests of justice in the abstract are best served by the ascertainment of the truth and their must be few cases where the interests of children can be shown to be best served by the suppression of truth. Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of FAO(OS) No. 547/2011 Page 21 of 31 paternity. Why should the risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong? Those principles have been consistently applied in subsequent cases, including Re H (A Minor)(Blood Tests: Parental Rights) [1996] WLR 506 and Re T (A Child) (DNA Tests: Paternity) [2001] 3 FCR 577. The judge sought to distinguish those two authorities in his concluding paragraph, which I have cited above. It draws the distinction that in those two cases there were serious doubts as to the husband's procreative capacities. I do not consider that that factual distinction begins to displace the points of principle to be drawn from the cases, first that the interests of justice are best served by the ascertainment of the truth and second that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences. I do not consider that that factual distinction begins to displace the points of principle to be drawn from the cases, first that the interests of justice are best served by the ascertainment of the truth and second that the court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences. It seems to me obvious that all that Lord Hodson expressed in the passage that I have cited applies with even greater force and logic in a later era. First there have been huge scientific advances with the arrival of DNA testing. Scientists no longer require blood, thus removing what for some is the unbearable process of its extraction. Of even greater importance is the abandonment of the legal concept of legitimacy achieved by the Family Law Act, 1987. It was further observed that paternity of any child is to be established by science and not by legal presumption or inference or by a long and acrimonious trial. 11. On a careful evaluation of the entire gamut of facts of the case before this Court, it appears that the petitioner, who was branded as a person to have committed rape on the victim, was subsequently presumed to be the father of the child born to the victim/respondent No. 1, in a maintenance proceedings before the trial Court More so, the rape alleged on the petitioner victim also could not be established after conclusion of full trial of the case. So, the suit was filed by the plaintiff/petitioner for declaration as indicated above. 12. In the case of Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission For Women, (2010) 8 SCC 633 , the Apex Court observed that in a matter, where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect. One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means, whenever the occasion requires. The other view is that the court must be reluctant in the use of such scientific advances and tools, which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties, but may have devastating effect on the child. The other view is that the court must be reluctant in the use of such scientific advances and tools, which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties, but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception. 13. When there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of "eminent need" whether it is not possible for the court to reach the truth without use of such test. 14. The Apex Court has observed that there is no conflict in the two decisions of the Apex Court in Goutam Kundu (supra) and Sharda (supra) [ (2003)4 SCC 493 ]. In Goutam Kundu (supra), it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda (supra) [ (2003)4 SCC 493 ], while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course. 15. Paternity of a child, is belief, but maternity is a feet. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course. 15. Paternity of a child, is belief, but maternity is a feet. It is a truth of natural science that while it is relatively difficult for a woman to erroneously judge that a child is hers, such errors aren't too tranquil said than done for men. A man has to put trust that the woman he is with is bearing his child when that is what she tells him; regrettably, not all women are wholly truthful. 16. In the past, nothing could be done because substantiating paternity was unfeasible. One could make deductions based upon who the child most looked like, but in truth the only evidence of paternity was being married to the mother when she gave birth thus giving rise to the principle that the father of a child was the man married to the mother. 17. In the present day, things have changed since paternity can be proved or disproved authoritatively with the help of DNA tests. A man can be completely confident whether a child is his or not and it's not a inconsequential issue. 18. Paternity test has set in motion to some very tough moral issues, not the least of which is the growing concern of the society. Man would not like to pay maintenance allowance and support a child only to find out later that the child he thought to be his, was in fact fathered by another man, when his wife (or girlfriends) was adulterous. 19. On the whole, the law provides a thin space to contest paternity in the court of law. In a suit for paternity, someone is going to lose. On the one hand, it certainly isn't fair for the petitioner to be forced to pay maintenance allowance for a child, if it is not his child. On the other hand, if a DNA test can be used to establish paternity and force a man to make such payments and take responsibility of the child, why can't it be used to settle the confusion of the father for all the time to come. 20. As a matter of fact, it would certainly be a grave harm to the child if such payments are allowed to stop. 20. As a matter of fact, it would certainly be a grave harm to the child if such payments are allowed to stop. But that doesn't mean that the allowance must come from a man who isn't the child's father. Since the maintenance allowance is so important, tracking down the actual father and make him pay would be more appropriate than to seize some one indiscriminately off the street and force him to make payments of the maintenance allowance. 21. Fatherhood is not just a matter of natural science. A father has to fill the social, emotional, and psychological role for a child for some period of time. The DNA test for paternity is a doubled edged weapon. If, however, the test is positive, then the newly christened father would be jubilant to make payments, as the biological father and take all such responsibility of a father. 22. In so far as the present case is concerned, as rightly pointed out by the learned counsel for the petitioner that a right to clear the disgrace put on the petitioner by the system can not be denied to him and the petitioner is entitled to resort to legal course, in accordance with law. Obviously, the right of the petitioner to prove the paternity by resorting to a DNA test cannot be taken away by demanding from the petitioner the proof of his innocence by adducing oral or documentary evidence. When a title suit has been filed by the petitioner seeking a declaration that he is not the father of the child born to the respondent No. 1, basing on the attending facts and circumstances, in my view, a strong prima facie case, with sufficient material is made out for a DNA test to decide the paternity of the child. 23. In view of above discussions and observations, the impugned order of the trial Court warrants interference. Accordingly, the impugned order dated 13.8.2012 passed by the learned Munsiff, No. 1, Jorhat, in Petition No. 1604/2010 (arising out of Title Suit No. 13/2010), is set aside. The trial Court is directed to allow the petitioner to carry out a DNA test in order to ascertain the paternity of the child born to the Respondent No. 1. With the above observations and directions, this revision petition is allowed The trial Court shall proceed with the suit, in accordance with law. Petition allowed