Judgment 1. The submissions made by Mr. P. Valliappan, learned counsel for the petitioner and by Mr. K. Vasu Venkat, learned counsel appearing the respondent are heard. The materials produced in the form of typed set of papers are also perused. 2. The first defendant in the original suit O.S.No.219/2010 on the file of the District Munsif, Rasipuram is the petitioner in the present revision. The other defendants are daughters and wife of one Varadharajan, the brother of the revision petitioner. The said suit was filed by the respondents 1 and 2 herein for partition and maintenance. Partition was claimed in respect of the share of the first respondent and maintenance was claimed for the second respondent. 3. Admittedly, the second respondent is the wife of the revision petitioner. The claim for partition was made on the basis of the contention that the minor first respondent is the son of the revision petitioner born through the second respondent. However, the revision petitioner/first defendant is resisting the suit denying the paternity of the first respondent. 4. In order to prove his case that the first respondent herein is not the son of the revision petitioner, he filed a petition in I.A.No.316/2011 for a direction to conduct DNA test for ascertaining the paternity of the first respondent. The said petition was resisted by the respondents herein contending that DNA test for ascertaining paternity of the minor cannot be done to nullify the provision found in Section 112 of the Indian Evidence Act, 1872, which is to the effect that 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 unmarried, shall be conclusive proof that he is the legitimate son of that man. Though the section provides a rider that the person disputing the paternity can show that the parties to the marriage had no access to each other at any point of time when the person could have been begotten. It was contended that even relying on the rider, the revision petitioner could not ask for a paternity test to be conducted to disprove the paternity of the child, namely the first respondent herein. 5. It was contended that even relying on the rider, the revision petitioner could not ask for a paternity test to be conducted to disprove the paternity of the child, namely the first respondent herein. 5. The learned District Munsif, Rasipuram, after hearing both sides, by a detailed order, dismissed the petition filed by the revision petitioner holding that the attempt made by the revision petitioner was to nullify the protection afforded under Section 112 of the Indian Evidence Act, 1872. The learned District Munsif has also held that even if it is found in the DNA test that the DNA of the child does not tally with the DNA of the revision petitioner, that alone shall not be enough to dislodge the protection afforded under Section 112 of the Indian Evidence Act, 1872 unless and until it is proved by satisfactory evidence that the revision petitioner did not have any access to the second respondent during the period when the first respondent could have been begotten. In arriving at such a conclusion, the learned District Munsif referred to various judgments, which enunciated and reiterated the above said points and this court deems it unnecessary to refer to all those judgments in this order. Suffice to refer to certain extracts from the judgments of the Hon'ble Apex Court in i) Dukhtar Jahan (Smt) v. Mohammed Farooq reported in (1987) 1 SCC 624 ; ii) Smt.Kanti Devi vs. Poshi Ram reported in2001 (2) CTC 625 (SC) : 2001 (5) SCC 311 and iii) Bhabani Prasad Jana vs. Convenor Secretary, Orissa State Commission for Women & Anr. reported in AIR 2010 SC 2851 . 6. In Dukhtar Jahan (Smt) v. Mohammed Farooq reported in (1987) 1 SCC 624 , the Hon'ble Supreme Court has held as follows: "Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any many or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of the 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. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless for the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother and an unchaste women." 7. In Smt. Kanti Devi vs. Poshi Ram reported in 2001 (2) CTC 625 (SC) : 2001 (5) SCC 311 , the Hon'ble Apex Court has held as follows: "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 as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. 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 Section 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 bastardised 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 of non-access as delineated above. "It was noted that Section 112 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') requires the party disputing the pattenage to prove non-access in order to dispel the presumption of the fact under Section 112 of the Evidence Act. There is a presumption and a very strong one, though rebuttable one. Conclusive proof means proof as laid down under Section 4 of the Evidence Act. There is a presumption and a very strong one, though rebuttable one. Conclusive proof means proof as laid down under Section 4 of the Evidence Act. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim paterst quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumed both that a marriage ceremony is valid and that every person is legitimate. Marriage of filiation (patentage) may be presumed, the law in general presuming against vice and immorality. "It is rebuttable presumption of law 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 a mere balance of probabilities." 8. In Bhabani Prasad Jana vs. Convenor Secretary, Orissa State Commission for Women & Anr. reported in AIR 2010 SC 2851 , the Apex Court has held as follows: "In a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives 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 if that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be pejudicial to the rights of the parties but may have devastating effect on this 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. In our view, when there is apparent conflict between the right to privacy of a person not be 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 is eminently needed. DNA is eminently needed. DNA in a matter relating to the 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 aspect 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." "There is no conflict in the two decision of this court namely Goutam Kundu ( AIR 1993 SC 2295 : 1993 AIR SCW 2325) and Sharda ' AIR 2003 SC 3450 : 2003 AIR SC2 1950). In Goutam Kundu 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 rowing enquiry; there must be strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test. In the case of Sharda 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 can be given by the court only if a strong prima facie case is made out for such a course." From the above, it could be seen that the learned District Munsif, Rasipuram, is in accordance with the established principles of law declared and followed in a line of judgments pronounced by the Apex Court and also by various High Courts. 9. In the case on hand, it is not in dispute that the marital relationship between the revision petitioner and the second respondent has not been snapped and it still continues. It is also not the case of the revision petitioner that at any point of time there was any exchange of notices or legal proceedings either for judicial separation or for divorce or for restitution of conjugal rights. It is also not the case of the revision petitioner that at any point of time there was any exchange of notices or legal proceedings either for judicial separation or for divorce or for restitution of conjugal rights. It is also an admitted fact that at no point of time before the filing of the present suit, the second respondent did file any suit or Original Petition or proceedings under the Criminal Procedure Code for maintenance on the ground that she was living separately. 10. Under such circumstances, instead of leading reliable evidence and prove his case that he did not have any access to the second respondent during the probable period in which the first respondent could have been begotten, the petitioner has chosen a short cut method by filing the petition for conducting DNA test to ascertain the paternity. This court does not find any mistake or defect in the order of the learned District Munsif, capable of being interfered with by this court in exercise of its superintendence power under Article 227 of the Constitution of India. There is no merit in the revision and the same deserves to be dismissed. In the result, the civil revision petition is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.