JUDGMENT : Sanjay Karol, J. Plaintiff-petitioner herein filed a suit praying for the following reliefs: “(a) That the defendants No. 1 is not the legally wedded wife of plaintiff and the defendants No. 2 to 4 are not daughter and sons of plaintiff and they are wife, daughter and sons of defendant No. 5 and as such are not entitled to get maintenance amount @ Rs. 500/- P.M. each from the plaintiff in any manner whatsoever as per the order of Ld. C.J.M., Nahan, H.P. and the order in Criminal Petition No. Cr-25/4 of 2000 decided on 5/12/2002 titled Vidya Devi etc. v/s Ram Gopal and orders passed by Hon’ble Sessions Judge in Criminal Revision No. 1-Cr-10 of 2003 titled Ram Gopal v/s Vidya Devi etc. decided on 27/12/2003 and order passed by the Hon’ble High Court in Revision No. Cr-M.M.O. No. 12/4 decided on 1/12/2008 are not binding over the rights of plaintiff and the claim of the defendants 1 to 4 in criminal proceedings U/S 125 Cr.P.C. be declared based on false facts. (b) With a consequential relief of permanent injunction restraining the defendants No. 1 to 4 getting maintenance of Rs. 500/- P.M. each from the plaintiff in future in any manner whatsoever on the basis of above said order/orders in the interest of justice.” 2. Whether in a civil suit, judgment rendered by this Court can be set aside or not is an issue which is left open to be decided by the trial Court, not being subject matter of the present petition. In proceedings arising under the provisions of Section 125 of the Code of Criminal Procedure, which are summary in nature, this Court has only affirmed the order of payment of maintenance, prima facie holding the petitioner to be husband of respondent No. 1. 3. Petitioner who is the plaintiff, is aggrieved of the order dated 19.2.2015 passed by Civil Judge, (Jr. Divn.), Nahan, District Sirmaur, H.P. in Application No. 38/6 of 2015, titled as Ram Gopal vs. Vidya Devi etc., whereby his application filed under Sections 45 and 112 of the Indian Evidence Act read with Section 151 CPC stands rejected. Plaintiff pleads defendant No. 1 not to be his legally wedded wife and defendants No. 2, 3 and 4 not being his children having been born through the loins of defendant No. 5. 4. Plaintiff pleads defendant No. 1 not to be his legally wedded wife and defendants No. 2, 3 and 4 not being his children having been born through the loins of defendant No. 5. 4. In order to substantiate his case, plaintiff filed the application in question, desiring defendants No. 2 to 4 as also defendant No. 5 through whom the children are alleged to have been born, being subjected to the DNA test. 5. Having heard learned counsel for the parties as also perused the record, I am of the considered view that the trial court seriously erred in rejecting the application. The order being perverse and not in consonance with the law of the land, needs to be quashed and set aside. 6. Question of paternity of defendants No. 2 to 4 is a fact in issue, being the subject matter of the suit. 7. The apex Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik & another, (2014) 2 SCC 576 has held that:- “17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. 18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. 18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.” 8. The aforesaid principle came up to be reiterated in Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 wherein, under somewhat similar circumstances, the Court allowed the prayer of the husband in getting the respondent/wife and the children subjected to the DNA test. 9. Under these circumstances, petition as also the application filed by the plaintiff is allowed. It stands clarified that in the event of the defendants not agreeing to be subjected to the test, to be conducted in accordance with law, presumptions and inferences contemplated under the Evidence Act would arise. 10. Parties are directed to appear before the trial Court on 23rd March, 2016. 11. Registrar (Judicial) is directed to ensure that the record is remitted immediately. Pending applications, if any, also stand disposed of accordingly.