JUDGMENT : J.B. PARDIWALA, J. 1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs; “(A) Your Lordship may be pleased to admit and allow this petition. (B) Your Lordship may be pleased to direct the respondent Police Authority to take necessary step for DNA test of Shivam, so called son of Respondent Nos.6 and 7, and further be pleased to direct Police Authority to permit Petitioner to be present at the time of DNA test, in the interest of justice. (C) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased to direct the respondent No.2 to take custody of minor Shivam from respondent No.6 and 7 and keep him in Child Observation Home for the safety of minor son Shivam. (D) Your Lordship may further be pleased to pass such other and further orders as may be deemed just and fit.” 2. The case of the writ applicant, in her own words, as pleaded in this petition, is as under; 2.1 On 07.10.2011 the petitioner lodged one complaint before the Rajula Police Station, District: Amreli for the offence punishable under section 365 of the Indian Penal Code, in which, she stated that, she is residing with her husband and she had one daughter namely Janvi who is aged about 4 years, and having one minor son of only 20 days and she delivered the male baby at Mahuva D.C., Ladumor Hospital on 18.09.2011, she was residing with her brother in law (Devar- Bharatbhai) and sister in law (Devrani Gitaben). On the day of incident i.e., on 07.10.2011, at afternoon when her husband after taking meal, went to the work and at that time, she as well as her sister in law, her elder daughter and son who is aged about 20 days were sleeping and when she wake up near about 4 0’clock, she found that her minor son who is only 20 days was missing and she made also search in the nearest place and she could not found her son, therefore, she lodged the complaint before the Rajula Police Station being CR-I No.85 of 2011 under Section 365 of the Indian Penal Code against unknown person. Annexed hereto and marked as Annexure-A is the copy of the complaint being CR-I No.85 of 2011. Annexed hereto and marked as Annexure-A is the copy of the complaint being CR-I No.85 of 2011. 2.2 The petitioner respectfully submits that thereafter investigation was carried by Rajula Police Station. They have recorded the statement of the witnesses but not a single clue was found by them and the offence remained as undetected. Annexed hereto and marked as Annexure-B (Colly.) are the copies of the statement of the witness recorded by the Rajula Police Station. 2.3. The petitioner respectfully submits that in July, 2017 the petitioner got information that the respondent Nos.6 and 7 are looking after her missing child and introduces him as their child. At the relevant point of time for some period, the respondent Nos.6 and 7 were residing in the same village that is Rajula as the respondent No.6 is doing job in SBI Bank at Rajula Branch in the same house in which the petitioner was residing and at that time, they do not have any issue (Son/Daughter) after their long marriage span. Therefore, the petitioner with the help of the Rajula Police Station went to Vyara, where at present the respondent Nos.6 and 7 are residing, for seeing and meeting with her son but the respondent Nos.6 and 7 does not allow the petitioner to see the face of her son or to meet with her son. Thereafter on 09.07.2017, the police officer of the Rajula police station with the help of the Vyara Police recorded the statement of the respondent Nos.6 and 7, in which they have admitted that after number of years of their marriage, they were not having any issue and after taking treatment of IVF from Dr. Prafulbhai Babubhai Doshi, having hospital at Surat, they got one son who was born on 08.05.2010 at Me and Mummy Hospital at Surat and from the next day on 10.07.2017, the statement of Dr.Prafulbhai Babubhai Doshi who gave treatment to the respondents Nos.6 and 7 was also recorded. Annexed hereto and marked Annexure-C (Colly.) copies of the statement of respondent nos.6 and 7 and Dr. Prafulbhai Babubhai Doshi. 2.4 It is submitted that the petitioner shocked and surprised when the petitioner along with the officer of the Rajula Police Station went to meet Dr. Annexed hereto and marked Annexure-C (Colly.) copies of the statement of respondent nos.6 and 7 and Dr. Prafulbhai Babubhai Doshi. 2.4 It is submitted that the petitioner shocked and surprised when the petitioner along with the officer of the Rajula Police Station went to meet Dr. Praful Babubhai Doshi for recording his statement as well as for doing inquiry, at that time, to the shock and surprise he was sitting on his table with the treatment papers of the respondent No.7. He also supply the same to the police persons. Annexed hereto and marked as Annexure-D (Colly.). the copies of medical papers of the respondent No. 7. 2.5 The petitioner respectfully submits that the petitioner requested to the Police Authority for DNA test of the so called son of the respondent Nos.6 and 7 but they are not taking any steps, therefore the petitioner has no other option but to approach this Hon’ble Court by way of the present petition. 3. Thus, the writ applicant is here before this Court complaining inaction on the part of the Police Officer in not conducting the DNA test so as to confirm whether the writ applicant is the biological mother of minor Shivam. 4. Ms. Yagnik, the learned counsel appearing for the writ applicant submitted that the case in hand is very unusual. Ms. Yagnik submitted that the DNA test may, perhaps, put an end to the entire speculation as regards the biological parents of Shivam. It is submitted that as the investigation is still in progress, the investigating officer should collect the blood sample of Shivam and also the blood sample of the writ applicant for the purpose of the DNA test. According to Ms. Yagnik, as Shivam is minor, he would not be in a position to give his consent for drawing the blood sample and, therefore, the consent of the respondents Nos.6 and 7 would have to be obtained. According to the learned counsel, even if the respondents Nos.6 and 7 decline to give their consent for drawing the blood sample of Shivam, the police can always exercise its powers under section 53 Cr.P.C. and collect the sample. In such circumstances, referred to above, Ms. Yagnik prays that an appropriate writ or direction be issued to the police authorities. 5. On 4th December, 2017, notice was issued only to the respondents Nos.1 to 5. 6. Mr. In such circumstances, referred to above, Ms. Yagnik prays that an appropriate writ or direction be issued to the police authorities. 5. On 4th December, 2017, notice was issued only to the respondents Nos.1 to 5. 6. Mr. Devnani, the learned APP appearing for the State, while vehemently opposing this writ application submitted that the reliefs prayed for in this writ application are far fetched and not tenable in law. From the papers of the investigation, carried out so far, the learned APP pointed out that Shivam was born in the wedlock of the respondents Nos.6 and 7. Shivam was born in a particular hospital and cesarean was performed. The necessary materials have been collected by the Investigating Officer, which, prima facie, would indicate that the respondents Nos.6 and 7 are the biological parents of Shivam. Mr. Devnani submitted that to compel a person to undergo or to submit himself or herself to the medical examination of his or her blood that or the like without his consent or against his wish tantamounts to interference with his fundamental right of life or liberty particularly even where there is a provision either in the Code of Criminal Procedure or the Evidence Act or any other law, which may be said to authorize the Court to compel a person to undergo such a medical test as blood test or the like against his wish. Mr. Devnani submitted that Shivam is minor and, therefore, there is no question of seeking his consent. Ultimately, the consent has to be obtained of the respondents Nos.6 and 7, who claim to be the parents of Shivam. Mr. Devnani further submitted that section 53 of the Cr.P.C provides for the examination of accused by a medical practitioner at the request of the police officer, whereas section 53-A, which came to be inserted by Act 25 of 2005 with effect from 23.06.2006, provides for the examination of person accused of rape by medical practitioner. The learned APP submitted that section 53 of the Code would come into play if a particular person is arrested on a charge of committing an offence. The respondents Nos.6 and 7 are not even treated as the accused as on date. The learned APP submitted that section 53 of the Code would come into play if a particular person is arrested on a charge of committing an offence. The respondents Nos.6 and 7 are not even treated as the accused as on date. In the last, the learned APP submitted that one can appreciate the anxiety and apathy of the writ applicant, who lost her new born baby but in order to have a roving inquiry, the prayer for blood test, ordinarily, should not be entertained by the Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. The learned APP, in support of his submissions, has placed reliance on a decision of the Supreme Court in the case of Goutam Kundu vs. State of W.B., reported in AIR 1993 SC 2295 . 7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to the reliefs prayed for in this writ application. 8. Having regard to the issue raised in this writ application, I deem it necessary to look into few provisions of the Code of Criminal Procedure, 1973. 9. Section 53 of the Code provides for the examination of accused by a medical practitioner at the request of the police officer. It reads as under; “53. Examination of accused by medical practitioner at the request of police officer. (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub- inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Explanation.- In this section and in section 54," registered medical practitioner" means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956 ) and whose name has been entered in a State Medical Register.” 10. Section 53-A, which came to be inserted by Act 25 of 2005 with effect from 23.06.2006, provides for the examination of person accused of rape by the medical practitioner. Section 54 provides for the examination of arrested person by the medical officer. It reads as under; “54. Examination of arrested person by medical practitioner at the request of the arrested person. When a person who is arrested, whether on a charge or otherwise alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.” 11. Section 53 of the Code, referred to above, was introduced, for the first time, in the year 1974 Code. The purpose of introducing this section was to facilitate effective investigation. If, from the nature of the alleged offence or the circumstances, under which, it is alleged to have been committed, there was reasonable ground for believing that the examination of the person will afford evidence, examination of the arrested person by a medical practitioner was authorized. The provision made under section 54 of the Code for examination of an arrested person by a medical practitioner at the request of the arrested person will also show that the object of the law-maker was to provide a facility during the investigation by scientific approach, which may either benefit the prosecution or the accused. The provision made under section 54 of the Code for examination of an arrested person by a medical practitioner at the request of the arrested person will also show that the object of the law-maker was to provide a facility during the investigation by scientific approach, which may either benefit the prosecution or the accused. This scientific approach during the investigation is thus under the protective eye of the law. The constitutional mandate does not say that no person shall be deprived of his right or personal liberty under any circumstances. On the contrary, if such deprivation of right or personal liberty is in accordance with the procedure established by law, it gets protected by Article 21. 12. The DNA profiling has been expressly included among the various forms of the medical examination in the amended explanation to sections 53, 53-A and 54 of the Cr.P.C. The DNA profile is different from a DNA sample which can be obtained from the bodily substances. The DNA profiling is a record created on the basis of the DNA samples made available by the forensic experts. The matching of DNA samples is emerging as a vital tool for linking suspect’s specific criminal acts. Therefore, the taking of the DNA samples which are in the nature of physical evidence does not violate Article 20(3) of the Constitution. The Supreme Court, in the case of Smt. Selvi & Ors. vs. State of Karnataka, AIR 2010 SC 1974 ruled that the person’s right to privacy is not absolute and could be reasonably curtailed but any forcible interference with a person’s mental process is not provided for under any statute. 13. Section 53 makes it very clear that it is only if a person is arrested on a charge of committing an offence of such a nature and that there are reasonable grounds for believing that an examination of his person would afford evidence as to the commission of an offence, then it shall be lawful for a registered medical practitioner to medically examine the accused. Such examination would include the DNA profiling. 14. In the case in hand, there is no accused as on date. Although, the first information report was registered way back in the year 2011, yet, the police has not been able to pinpoint its finger towards a particular person having taken away the baby of the writ applicant from the cradle. Such examination would include the DNA profiling. 14. In the case in hand, there is no accused as on date. Although, the first information report was registered way back in the year 2011, yet, the police has not been able to pinpoint its finger towards a particular person having taken away the baby of the writ applicant from the cradle. It is only after almost a period of seven years that the writ applicant has started entertaining doubts in her mind that it is the respondents Nos.6 and 7, who had picked up her baby from the cradle. In such circumstances, there is no question even for the police to invoke section 53 of the Cr.P.C for the purpose of DNA profiling. The Supreme Court, in the case of Goutam Kundu (supra) was concerned with a matter arising out of maintenance for child claimed by the wife. The husband disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. This Court referred to Section 4 and Section 112 of the Evidence Act and also the decisions of English and American Courts and some authoritative texts including the following statement made in Rayden's Law and Practice in Divorce and Family Matters (1983), Vol. I, p. 1054 which reads thus:- "Medical Science is able to analyse the blood of individuals into definite groups; and by examining the blood of a given man and a child to determine whether the man could or could not be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man could or could not be the father. It is obviously the latter aspect that proves most valuable in determining paternity, that is, the exclusion aspect, for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. It is obviously the latter aspect that proves most valuable in determining paternity, that is, the exclusion aspect, for once it is determined that a man could not be the father, he is thereby automatically excluded from considerations of paternity. When a man is not (1993) 3 SCC 418 the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show positively he is not the father, and in some cases the chance is even higher; between two given men who have had sexual intercourse with the mother at the time of conception, both of whom undergo blood tests, it has likewise been said that there is a 90 per cent chance that the tests will show that one of them is not the father with the irresistible inference that the other is the father." This Court then finally concluded thus; (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 ayalysis." 15. In Sharda v. Dharmpal, (2003) 4 SCC 493 a three- Judge Bench of the Supreme Court was concerned with the question whether a party to the divorce proceedings can be compelled to a medical examination. That case arose out of an application for divorce filed by the husband against the wife under Section 13(1)(iii) of the Hindu Marriage Act, 1955. In other words, the husband claimed divorce on the ground that wife has been incurably of unsound mind or has been suffering from mental disorder. The Court observed, "Goutam Kundu is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. In other words, the husband claimed divorce on the ground that wife has been incurably of unsound mind or has been suffering from mental disorder. The Court observed, "Goutam Kundu 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." While dealing with the aspect as to whether subjecting a person to a medical test is violative of Article 21 of the Constitution of India, it was stated that the right to privacy in terms of Article 21 of the Constitution is not an absolute right. This Court summed up conclusions thus : "1. A matrimonial court has the power to order a person to undergo medical test. 2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution. 3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him." 16. In Banarsi Dass v. Teeku Dutta & Anr., (2005) 4 SCC 449 this Court was concerned with a case arising out of succession certificate. The allegation was that Teeku Dutta was not the daughter of the deceased. An application was made to subject Teeku Dutta to DNA test. The High Court held that trial court being a testamentary court, the parties should be left to prove their respective cases on the basis of the evidence produced during trial, rather than creating evidence by directing DNA test. When the matter reached the Supreme Court, few decisions of the Supreme Court, particularly, Goutam Kundu was noticed and it was held that even the result of a genuine DNA test may not be enough to escape from the conclusiveness of Section 112 of the Evidence Act like a case where a husband and wife were living together during the time of conception. This is what this Court said :- “13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic 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 Evidence 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 irrebuttable. 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 or non-access as delineated above.” It was emphasized that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given. 17. In the case of Ramkanya Bai v. Bharatram, (2010) 1 SCC 85 the order of the High Court directing DNA of the child at the instance of the husband was set aside and it was held that the High Court was not justified in allowing the application for grant of DNA of the child on the ground that there will be possibility of reunion of the parties if such DNA was conducted and if it was found from the outcome of the DNA that the son was born out of the wedlock of the parties. 18. 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. 18. 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 is 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 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. 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 is eminently needed. DNA 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. 19. The Supreme Court, in the case of Bhabani Prasad Jena vs. Convenor Secretary, AIR 2010 SC 2851 , observed as under; “19. In Banarsi Dass v. Teeku Dutta [ (2005) 4 SCC 449 ] this Court was concerned with a case arising out of a succession certificate. The allegation was that Teeku Dutta was not the daughter of the deceased. An application was made to subject Teeku Dutta to DNA test. The High Court held that the trial court being a testamentary court, the parties should be left to prove their respective cases on the basis of the evidence produced during trial, rather than creating evidence by directing DNA test. An application was made to subject Teeku Dutta to DNA test. The High Court held that the trial court being a testamentary court, the parties should be left to prove their respective cases on the basis of the evidence produced during trial, rather than creating evidence by directing DNA test. When the matter reached this Court, few decisions of this Court, particularly, Goutam Kundu [ (1993) 3 SCC 418 : 1993 SCC (Cri) 928] were noticed and it was held that even the result of a genuine DNA test may not be enough to escape from the conclusiveness of Section 112 of the Evidence Act like a case where a husband and wife were living together during the time of conception. This is what this Court said: (Banarsi Dass case [ (2005) 4 SCC 449 ], SCC pp. 454-55, para 13) xxx xxx xxx It was emphasised that DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given.” (Emphasis by us) 20. There is no conflict in the two decisions of the Supreme Court, namely, Goutam Kundu (supra) and Sharda (supra). In Goutam Kundu, it has been laid down that courts in India should not order blood test as a matter of course and such prayers should not be granted to have a roving inquiry; there must be a 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 (supra) while concluding that a matrimonial court has the 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. 21. So far as the expression “prima facie case” is concerned, in the judgment reported at AIR 1958 SC 79 , Martin Burn Ltd. v. R.N. Banerjee, the Supreme Court had observed thus : “27. 21. So far as the expression “prima facie case” is concerned, in the judgment reported at AIR 1958 SC 79 , Martin Burn Ltd. v. R.N. Banerjee, the Supreme Court had observed thus : “27. …A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co., Ltd. [(1952) Labour Appeal Cases 490]. 22. Considering the importance of the issue, I would like to sum up the principles laid down by the Judicial Precedents on consideration of an application for an examination of the blood sample. These principles will be helpful to the sub-ordinate courts as they have to quite frequently deal with the issue in hand. (I) A rebut table presumption of legitimacy is attached to a child born of a married woman during a subsistence of marriage or within 280 days of its severance (Ref.: Section 112 of the Indian Evidence Act; AIR 2001 SC 2226 , Kamti Devi v. Poshi Ram – para 11; (2005) 4 SCC 449 , Banarsi Dass v. Teeku Datta – para 10; AIR 2009 SC 3115 , Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors. – para 10) (ii) The DNA test is not to be directed as a matter of routine. Such direction can be given only in deserving cases (Ref.: (2005) 4 SCC 449 , Banarsi Dass v. Teeku Datta – para 14). (iii) 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, the DNA test is eminently needed. Such direction can be given only in deserving cases (Ref.: (2005) 4 SCC 449 , Banarsi Dass v. Teeku Datta – para 14). (iii) 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, the DNA test is eminently needed. (Ref.: AIR 2003 SC 3450 , Sharda v. Dharampal – para 80 ; AIR 2010 SC 2851 , Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & Anr. - Para 13) (iv)(a) 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. (Ref.: (1993) 3 SCC 418 : AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal & Anr.) (iv)(b) The court would exercise discretion, only after balancing the interests of the parties and on consideration as to whether for a just decision in the matter the DNA test is imminently needed i.e. as to whether it is not possible for the court to reach the truth without use of such test. For so concluding, the court has to consider the materials placed by both the parties and the test shall not be ordered in routine for a roving enquiry. (v) “Access” and “non-access” mean the existence or nonexistence of opportunities for sexual intercourse; it does not mean actual “cohabitation” (Ref.: AIR 1934 PC 49 , Karapaya Servai v. Mayandi ; (1993) 3 SCC 418 : AIR 1993 SC 2295 Goutam Kundu v. State of West Bengal & Anr. – para 24) (vi) In a civilised society it is imperative to presume the legitimacy of a child born during the continuation of a valid marriage and whose parents had “access” to each other (Ref.: (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors. – para 42) (vii) Burden of proving illegitimacy is on the person who makes such allegation (Ref. : para 10 of (2005) 4 SCC 449 Sh. Banarasi Dass v. Mrs. Teeku Datta) (viii) 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. : para 10 of (2005) 4 SCC 449 Sh. Banarasi Dass v. Mrs. Teeku Datta) (viii) 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. (Ref.: AIR 2001 SC 2226 , Kamti Devi v. Poshi Ram – para 10) (ix) The presumption under Section 112 of the Indian Evidence Act can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities or on the basis of slender material. The standard of proof in such cases must be of a degree in between the preponderance of probability and proof beyond reasonable doubt by way of abundant caution and has a matter of public policy (Ref.: AIR 2001 SC 2226 , Kamti Devi v. Poshi Ram – para 11 & 12) (x) The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt (Ref.: (2009) 12 SCC 454 : AIR 2009 SC 3115 Sham Lal alias Kuldeep v. Sanjeev Kumar & Ors. – para 39) (xi) The verdict of displacement of the presumption shall not be rendered on the basis of slender materials. 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 irrebuttable (Ref.: (2001) 5 SCC 311 , Kamti Devi v. Poshi Ram – Para 11; (2005) 4 SCC 449 , Banarsi Dass v. Teeku Datta – para 13). (xii) The courts must be inclined towards upholding the legitimacy of the child unless 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 (Ref.: Dukhtar Jahan v. Mohd. Farooq [ (1987) 1 SCC 624 ).” [see judgment dated 26th August, 2016 by the Delhi High Court in MAT.APP.(F.C.) 17/2016 & CM NO.5064/2016] 23. I am of the view that the writ applicant is not entitled to the reliefs prayed for in this writ application. Farooq [ (1987) 1 SCC 624 ).” [see judgment dated 26th August, 2016 by the Delhi High Court in MAT.APP.(F.C.) 17/2016 & CM NO.5064/2016] 23. I am of the view that the writ applicant is not entitled to the reliefs prayed for in this writ application. Without hurting the feelings of the writ applicant, who unfortunately lost her new born baby, I am of the view that this writ application is nothing but a roving inquiry. The investigation is going on past almost six years. The same may proceed further in accordance with law. However, the prayer for DNA test should not be granted. 24. In the result, this writ application fails and is hereby rejected. (Petition Rejected)