JUDGMENT : Dharam Chand Chaudhary, J. This petition is directed against the order dated 18.3.2015, passed by learned District Judge, Shimla in an application under Order 26 Rule 10A CPC read with Section 45 of the Indian Evidence Act, registered as case No. 36-S/1 of 2013/2012, whereby the application has been allowed and the petitioner (hereinafter referred to as defendant No. 1) directed to submit himself for giving sample of his blood before Chief Medical Officer, Shimla so that the same could be sent to Forensic Science Laboratory for DNA profiling. 2. A short question as to whether in the given facts and circumstances of the case, defendant No. 1 could have been directed to give his blood sample for conducting DNA profiling or not arises for determination in this petition. 3. Respondent No. 1 herein is the plaintiff in the trial Court. He has filed suit for declaration that he is son of defendant No. 1 born out of his wed-lock with his mother Smt. Nirmala. Defendant No. 1 has, however, denied such averments made in the plaint being wrong as according to him, the plaintiff is not born to him out of his wed-lock with said Smt. Nirmala. Also that, he never solemnized marriage with her nor she was his legally wedded wife. The suit presently is at the stage of recording plaintiffs’ evidence. 4. The legality and validity of the impugned order has been assailed on the grounds, inter alia, that allowing the application and permitting thereby the plaintiff to draw blood sample of defendant No. 1 for the purpose of DNA profiling amounts to collection of evidence by the Court for the plaintiff. Also that, appropriate stage for filing an application of this nature would have been after the parties having led their evidence and the necessity of any such scientific investigation still required after recording such evidence. 5. On the other hand, learned counsel representing the respondent-plaintiff has contended that when the petitioner-defendant has denied the parentage of the plaintiff, the only mode to prove the case so pleaded in the plaint is conducting of DNA profiling to find out as to whether the plaintiff is born to Nirmala Devi from the loins of defendant No. 1 or not. 6. 6. On analyzing the rival submissions and also the given facts and circumstances of this case, the plaintiff, a minor has sought the declaration that he is the son of defendant No.1 born to his mother Smt. Nirmala out of her wed-lock with the said defendant. As noticed hereinabove, the said defendant has, however, denied this part of the plaintiff’s case, being wrong. True it is that the plaintiff has not yet entered the witness box as he is yet to produce the evidence in support of his case as set out in the plaint. Similarly, the defendants, particularly defendant No. 1 is also yet to produce the evidence, however, in the considered opinion of this Court when the said defendant has denied the paternity of the plaintiff, there can’t be any other and further evidence except DNA profiling which could only prove that the plaintiff is the son of defendant No. 1 or not. Therefore, allowing the application in this case well before recording the evidence of the parties will not amount the collection of evidence for any party by the Court rather such evidence is essentially required for just and effective decision of the point in issue in the suit. 7. The judgment of the Division Bench of this Court in Ditam Singh vs. Waryam Singh, Latest HLJ 2003 (HP) DB 131 is distinguishable on facts, hence not applicable in this case. On the other hand, the apex Court in a recent judgment titled as Dipanwita Roy vs. Ronobroto Roy, AIR 2015 SC 418 , while taking note of previous judgment, again that of the Apex Court in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633 : AIR 2010 SC 2851 , has held that it is always permissible for a Court to direct the party for holding of DNA examination to determine the veracity of the allegations, which constitute one of the grounds, on which the concerned party would either succeed or lose and also that, if the direction to hold such a test can be avoided, the Court should avoid to do so. In that case, since the allegation of infidelity were leveled by the husband against the wife, therefore, while allowing conducting DNA test of the wife, liberty was reserved in her favour either to opt for holding such test or decline to do so with further observation that on her declining to do so, the presumption as contemplated under Section 114 of the Indian Evidence Act was left open to be drawn against her at the time of final hearing of the case. The relevant text of this judgment reads as follows: “9. All the judgments relied upon by the learned counsel for the appellant were on the pointed subject of the legitimacy of the child born during the subsistence of a valid marriage. The question that arises for consideration in the present appeal, pertains to the alleged infidelity of the appellant-wife. It is not the husband's desire to prove the legitimacy or illegitimacy of the child born to the appellant. The purpose of the respondent is, to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act, 1955, namely, that after the solemnisation of the marriage of the appellant with the respondent, the appellant had voluntarily engaged in sexual intercourse, with a person other than the respondent. There can be no doubt, that the prayer made by the respondent for conducting a DNA test of the appellant's son as also of himself, was aimed at the alleged adulterous behaviour of the appellant. In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved. Therefore, insofar as the present controversy is concerned, Section 112 of the Indian Evidence Act would not strictly come into play. A similar issue came to be adjudicated upon by this Court in Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633 , wherein this Court held as under: “21. 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. 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. 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. 22. In our view, 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. 23. There is no conflict in the two decisions of this court, namely, Goutam Kundu vs. State of West Bengal (1993) 3 SCC 418 and Sharda vs. Dharmpal (2003) 4 SCC 493 . 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 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 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 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, 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 prime 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. 24. Insofar as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA test. Looking to the nature of proceedings with which the High Court was concerned, it has to be held that the High Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court overlooked a very material aspect that the matrimonial dispute between the parties is already pending in the court of competent jurisdiction and all aspects concerning matrimonial dispute raised by the parties in that case shall be adjudicated and determined by that court. Should an issue arise before the matrimonial court concerning the paternity of the child, obviously that court will be competent to pass an appropriate order at the relevant time in accordance with law. In any view of the matter, it is not possible to sustain the order passed by the High Court. “(emphasis is ours) It is therefore apparent, that despite the consequences of a DNA test, this Court has concluded, that it was permissible for a Court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties. Recently, the issue was again considered by this Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576 , wherein this Court held as under: “15. Recently, the issue was again considered by this Court in Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576 , wherein this Court held as under: “15. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had not any access to his wife at the time when the child could have been begotten. 16. As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that Respondent 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstances, which would give way to the other is a complex question posed before us. 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. 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. The 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, a 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. 19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardised as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.” (emphasis is ours) This Court has therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act. 10. It is denying the truth. “Truth must triumph” is the hallmark of justice.” (emphasis is ours) This Court has therefore clearly opined, that proof based on a DNA test would be sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act. 10. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegations, which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril. 11. The question that has to be answered in this case, is in respect of the alleged infidelity of the appellant-wife. The respondent-husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the appellant-wife. It is in the process of substantiating his allegation of infidelity, that the respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the appellant-wife. The respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the appellant-wife's infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so. 12. We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder: “114. Court may presume existence of certain facts – The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (h) - That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.” This course has been adopted to preserve the right of individual privacy to the extent possible. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.” 8. Of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under Section 112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.” 8. The point in issue in this petition is, therefore, squarely covered in favour of respondent-plaintiff by the judgment of the Apex Court for the reason that the factum of the plaintiff is son of defendant No. 1 or not can only be proved by DNA profiling. The present, as such, is a case where a direction to defendant No. 1 to present himself before the Chief Medical Officer, Shimla for getting his blood sample drawn for conducting DNA test cannot be avoided. The DNA test in this case rather is extracting grain from the chef and is essentially required to find out the truth and decide the dispute brought to the Court more effectively and judiciously. The present is also not a case where liberty should be reserved in favour of defendant No. 1 either to submit himself for DNA profiling or not for the reason that there is no question of his privacy likely to be affected like in the case before the Hon’ble Apex Court where the allegations of infidelity were against the respondent-wife. 9. Therefore, the impugned order neither suffers from any infirmity nor any illegality. The same as such calls for no interference by this Court. The petition, being devoid of any merits is dismissed. The parties through learned counsel representing them are directed to appear in the trial Court on 4.1.2017. 10. An authenticated copy of this judgment be also sent to learned trial Magistrate for plating the same on record.