JUDGMENT : Akshaya Kumar Rath, J. 1. This petition challenges the order dated 13.11.2014 passed by the learned Civil Judge (Sr. Divn.), Jeypore in C.S. No. 62 of 2009, whereby learned trial court allowed the application of the plaintiff for conducting the DNA test of the plaintiff and defendant No. 1. 2. Opposite party No. 1 as plaintiff instituted the suit for declaration that he is not the father of the defendant No. 1 (petitioner herein), permanent injunction and certain other ancillary reliefs impleading the petitioner as well as opposite party Nos. 2 and 3 as defendants. The petitioner is defendant No. 1 in the suit. The case of the plaintiff is that the marriage between the plaintiff and defendant No. 3 was solemnized in the year 1979 according to Hindu customs and rites. After marriage, the defendant No. 3 resided in the house of the plaintiff. Prior to the marriage, the defendant No. 3 had affairs with defendant No. 2. While the matter stood thus, defendant No. 3 gave birth to defendant No. 1 in the year 1981. Defendant No. 3 had extra marital relationship with defendant No. 2 even after marriage. In the village meeting, she confessed the same. Dissension cropped up in the family. From 1.5.1986, the defendant Nos. 2 and 3 are living together as husband and wife. It is further stated that his father-in-law admitted the defendant No. 1 in the school describing him as the son of the plaintiff without his knowledge. In the electoral roll, defendant No. 1 has been described as the son of the plaintiff. The electoral roll prepared without his knowledge. On 01.07.2009, the defendant No. 1 married to one Meenakshi Choudhury. He forcibly entered into the house of the plaintiff for which F.I.R. was lodged. 3. Pursuant to issuance of summons, the defendant No. 1 entered appearance and filed written statement-cum-counter claim praying, inter alia, for a declaration that he is the legitimate son of the plaintiff and defendant No. 3 during subsistence of their lawful wedlock and certain other ancillary reliefs. 4. In course of hearing, the plaintiff had examined as P.W. 1. At this juncture, application was filed by the plaintiff to conduct D.N.A. test of the plaintiff and defendant Nos. 1 and 2. Defendant No. 1 filed objection to the same stating therein that the plaintiff is his father. 4. In course of hearing, the plaintiff had examined as P.W. 1. At this juncture, application was filed by the plaintiff to conduct D.N.A. test of the plaintiff and defendant Nos. 1 and 2. Defendant No. 1 filed objection to the same stating therein that the plaintiff is his father. Since his birth, he resided with the plaintiff. He has married and leading a blissful marital life. In the event, he will be compelled to give blood sample for D.N.A. test, the result of the test will hamper his prestige, which cannot be compensated with money. The plaintiff cannot compel him to give blood for D.N.A. test. There is sufficient evidence on record to show the paternity of the plaintiff and legitimacy of the defendant No. 1. 5. Learned trial court came to hold that the material record reveals that marriage between the plaintiff and defendant No. 3 was solemnized in the month of 'Baisakh' in the year 1979 as per the Hindu customs and rites. After marriage, defendant No. 3 resided in the house of the plaintiff. The plaintiff had alleged that prior to marriage defendant No. 3 had illicit relationship with defendant No. 2. The same was discovered subsequently. The plaintiff had sexual intercourse with defendant No. 3 for about six months against her desire. The plaintiff had alleged that defendant No. 3 gave birth to defendant No. 1 because of the illicit relationship with defendant No. 2. It further held that defendant No. 1 was born during continuance of a valid marriage between the plaintiff and defendant No. 3. The marriage between the plaintiff and defendant No. 3 was not dissolved till the year 1986. There is no clear evidence on record that the plaintiff at any point of time did not have access to the defendant No. 3 before birth of defendant No. 1. Having recorded such a finding, learned trial court abruptly directed the D.N.A. test of the plaintiff and defendant No. 1. 6. Heard Mr. Dash, learned counsel for the petitioner and Mr. Mishra, learned counsel for the opposite party No. 1. 7. Mr. Dash, learned counsel for the petitioner, submitted that defendant No. 1 is the son of the plaintiff. At the time of institution of the suit, defendant No. 1 was 30 years. Defendant No. 1 married to one Meenakshi Choudhury and leading a blissful marital life. Mishra, learned counsel for the opposite party No. 1. 7. Mr. Dash, learned counsel for the petitioner, submitted that defendant No. 1 is the son of the plaintiff. At the time of institution of the suit, defendant No. 1 was 30 years. Defendant No. 1 married to one Meenakshi Choudhury and leading a blissful marital life. Out of their wedlock, two children are born. In order to deprive the defendant No. 1 from the property, the plaintiff has instituted the suit. Defendant No. 1 will suffer ignominy, in the event his blood sample is collected for D.N.A. test. Right of privacy of defendant No. 1 cannot be pervaded by directing D.N.A. test. There must be strong prima facie case before directing D.N.A. test. There is no finding with regard to the same. In view of the same, the impugned order is vitiated. 8. Per contra, Mr. Mishra, learned counsel for the opposite party No. 1 supported the impugned order. He submitted that the plaintiff is not the father of the defendant No. 1. When the paternity of defendant No. 1 is dispute, the same can be resolved only when D.N.A. test is conducted. Learned trial court has rightly allowed the application. He relied upon the decisions of the apex Court in the case of Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik and another, AIR 2014 SC 932 and Dipanwita Roy vs. Ronobroto Roy, AIR 2015 SC 418 . 9. Before proceeding further, it is apt to refer the decision of the apex Court in the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Another, AIR 2010 SC 2851 . The apex Court held thus: "13. 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. 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 of 'eminent need' whether it is not possible for the court to reach the truth without use of such test. 14. There is no conflict in the two decisions of this Court, namely, Goutam Kundu ( AIR 1993 SC 2295 : AIR SCW 2325) and Sharda ( AIR 2003 SC 3450 : 2003 AIR SCW 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 roving inquiry; 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 too 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. 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. In so far as the present case is concerned, we have already held that the State Commission has no authority, competence or power to order DNA. Looking to the nature of proceedings with which the High Court was concerned, it has to be held that High Court exceeded its jurisdiction in passing the impugned order. Strangely, the High Court over looked 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." 10. In Nandlal Wasudeo Badwaik (supra), the apex Court held as follows: "15. xxx xxx xxx 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 or 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. 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 No. 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 circumstance, 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. 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. 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. 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 bastardized 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." 11. The apex Court in the case of Dipanwita Roy (supra) held 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 legitimacy of a child should not be put to peril. 12. The decision in the case of Nandlal Wasudeo Badwaik (supra) is distinguishable on facts inasmuch as D.N.A. test had already been conducted in the said case, as would be evident from paragraph 19 of the said report. 13. On a conspectus of the decisions of the apex Court in the case of Bhabani Prasad Jena (supra) and Dipanwita Roy (supra), it is evident that 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. 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 of 'eminent need' whether it is not possible for the court to reach the truth without use of such test. There must be strong prima facie case and court must carefully examine as to what would be the consequence of ordering the blood test. Any order for DNA can be given by the court only if a strong prima facie case is made out for such a course. 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. If the direction to hold such a test can be avoided, it should be so avoided. 14. It is admitted by the parties that the defendant No. 1 has married to one Meenakshi Choudhury in the meantime and out of their wedlock, two children are born. He is more than 35 years. The assertion of the plaintiff is that the defendant No. 1 was born in the year 1981. He rose from the deep slumber and instituted the suit in the year 2009. In the school admission register and electoral roll, the defendant No. 1 has been described as the son of the plaintiff. The plaintiff has not made out a strong prima facie case. In a matter relating to paternity of a child, D.N.A. test should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The plaintiff has not made out a strong prima facie case. In a matter relating to paternity of a child, D.N.A. test should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. Though learned trial court came to hold that the defendant No. 1 was born during continuance of a valid marriage between the plaintiff and defendant No. 3 and the said marriage was dissolved in the year 1986 and there is no clear evidence on record that the plaintiff at any point of time did not have access to the defendant No. 3 before birth of defendant No. 1, but abruptly directed the D.N.A. test of plaintiff and defendant No. 1. For a just decision in the case, D.N.A. test is not eminently needed. On the available material on record, the court can decide the issue of paternity. 15. In view of the same, the order dated 13.11.2014 passed by the learned Civil Judge (Sr. Divn.), Jeypore in C.S. No. 62 of 2009 is quashed. The petition is allowed. No costs. Petition Allowed