JUDGMENT : Sandeep Sharma, J. By way of present petition filed under Art. 227 of the Constitution of India, challenge has been laid to order dated 9.8.2018, passed by learned Civil Judge (Senior Division), Court No. VII, Shimla, Himachal Pradesh in CMA No. 1262 of 2018 in Civil Suit No. 75-1 of 2016, titled Naveeta v. Bhagwan Singh, whereby an application filed by the petitioner-plaintiff (hereinafter, ‘plaintiff’) under S.151 CPC, praying therein for DNA profiling of the respondent-defendant (hereinafter, ‘defendant’), came to be dismissed. 2. For having a bird's eye view, facts in brief, as emerge from the record are that the plaintiff filed a suit for declaration in the court of learned Civil Judge (Senior Division), Shimla, to the effect that she (plaintiff) be declared legal and lawful daughter of defendant namely Bhagwan Singh, born from relationship of defendant with Smt. Sneh Prabha, mother of the plaintiff. Plaintiff also prayed that she be held entitled for other consequential reliefs which may flow after the declaration that the plaintiff is legal and lawful daughter of the defendant. In the written statement (Annexure P-2), defendant has specifically denied the claim of the plaintiff that she is his (defendant's) daughter born out of alleged relationship with Smt. Sneh Prabha. Though the pleadings in the case are complete, issues are yet to be framed, however, during the pendency of the suit, plaintiff filed an application (Annexure P-3) under S.151 CPC, praying therein for DNA profiling of the defendant. In the application, Annexure P-3, plaintiff claimed that since the defendant has not accepted her claim that she is his daughter, DNA profiling of the defendant may be ordered to arrive at a just and proper decision. However, the fact remains that the learned trial Court, vide order dated 9.8.2018, dismissed the aforesaid application preferred by the plaintiff being not maintainable at this stage. If the impugned order is read in its entirety, it reveals that the learned trial Court found no “eminent need” for DNA profiling of the defendant, especially when evidence is yet to be led on record by the plaintiff in support of her averments made in the plaint (Annexure P-1). 3. I have heard learned counsel for the parties and perused the material available on record. 4. 3. I have heard learned counsel for the parties and perused the material available on record. 4. Before adverting to the factual matrix of the case, this court deems it appropriate to take note of the legal pronouncements made by the Hon'ble Apex Court from time to time, on the issue at hand. 5. Hon'ble Apex Court in Goutam Kundu v. State of W.B., (1993) 3 SCC 418 , while specifically dealing with the prayer made for DNA profiling, held that it is a rebuttable presumption of law, that a child born during the lawful wedlock is legitimate, and that access occurred between the parties. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. While interpreting S.112 of the Indian Evidence Act, Hon'ble Apex Court held that effect of this section is this: there is a presumption and a very strong one though a rebuttable one. Conclusive proof means as laid down under section 4 of the Evidence Act. 6. In the totality of facts and circumstances before Hon'ble Apex Court, their Lordships laid down following parameters for considering prayer, if any, for DNA profiling:— “26. From the above discussion it emerges:— (1) that courts in India cannot order blood test as 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 analysis.” 7. Subsequently, Hon'ble Apex Court in Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633 , held that 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. 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. Following paragraphs of the aforesaid judgment may be usefully extracted herein below: “21. 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. 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 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. 23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu and Sharda. 23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu and Sharda. 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 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.” 8. Close scrutiny of aforesaid judgment passed by Hon'ble Apex Court clearly reveals that 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 profiling/test is eminently needed. DNA testing 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. 9. In Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554, Hon'ble Apex Court again held that even the Constitution of India casts a duty upon every citizen of India to develop scientific temper and the spirit of inquiry and reform and to strive towards excellence, to reach higher levels of achievement. While specifically dealing with the case relating to prayer for DNA profiling, Hon'ble Apex Court observed in the aforesaid judgment that when modern tools of adjudication are at hand, it is not understood why courts refuse to step out of their dogmas and insist upon the long route to be followed at the cost of misery to the litigants. Following paragraphs of the judgment (supra) are relevant in the context of this case: “38. Following paragraphs of the judgment (supra) are relevant in the context of this case: “38. Even the Constitution of India, while laying down the fundamental duties, by Articles 51-A(h) and (j) declares it to be the duty of every citizen of India to develop a scientific temper and the spirit of inquiry and reform and to strive towards excellence, to reach higher levels of achievement. What we wonder is that when modern tools of adjudication are at hand, must the courts refuse to step out of their dogmas and insist upon the long route to be followed at the cost of misery to the litigants. The answer obviously has to be no. The courts are for doing justice, by adjudicating rival claims and unearthing, the truth and not for following age-old practices and procedures, when new, better methods are available. 56. Recently in Maria Margarida Sequeira Fernades v. Erasmo Jack de Sequeira it was reiterated that the truth is the guiding star and the quest in the judicial process and the voyage of trial. The trend world over of full disclosure by the parties and deployment of powers to ensure that the scope of factual controversy is minimised was noticed. We are therefore of the opinion that adverse inference from non-compliance cannot be a substitute to the enforceability of a direction for DNA testing. The valuable right of the appellant under the said direction, to prove his paternity through such DNA testing cannot be taken away by asking the appellant to be satisfied with the comparatively weak “adverse inference”. 10. In case Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576 , Hon'ble Apex Court reiterated that 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. Following paragraphs of the judgment (supra) are relevant in the case at hand: “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 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. 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. 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. In case Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365 , Hon'ble Apex Court, while reiterating its earlier judgments rendered in Bhabani Prasad Jena and Nandlal Wasudeo Badwaik (supra), reiterated that depending upon facts and circumstances, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation, which constitute one of the grounds, on which the concerned party would either succeed or lose. Most importantly, in the aforesaid judgment, Hon'ble Apex Court observed that if direction to hold such a test could be avoided, it should be avoided because legitimacy of a child should not be put to peril. It would be apt to reproduce following paragraph of the aforesaid judgment herein below: “17. 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. Careful perusal of the aforesaid pronouncements made by Hon'ble Apex Court from time to time though reveal that the matter pertaining to use of DNA testing being extremely delicate and sensitive aspect, should not be resorted to unless it is eminently required. In the earlier pronouncements, Hon'ble Apex Court observed 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, but, in the subsequent judgments, Hon'ble Apex Court has categorically held that the courts with a view to ascertain the truth should be furnished with best available scientific evidence and courts may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In Nandlal Wasudeo Badwaik (supra), Hon'ble Apex Court held that, “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.” 13. Test of “eminent need” is definitely required to be applied by the Court while considering application, if any, for DNA profiling but such test would certainly depend upon facts and circumstances of each case. In the case at hand, plaintiff, who claims to be daughter of defendant, has filed suit for declaration that she be declared daughter of defendant. Test of “eminent need” is definitely required to be applied by the Court while considering application, if any, for DNA profiling but such test would certainly depend upon facts and circumstances of each case. In the case at hand, plaintiff, who claims to be daughter of defendant, has filed suit for declaration that she be declared daughter of defendant. Once factum with regard to her being daughter of defendant has been specifically denied by the defendant in his written statement, plaintiff is left with no other option but to pray for DNA profiling of the defendant. In Bhabani Prasad (supra), no doubt, Hon'ble Apex Court has held that while considering prayer for DNA profiling, courts are required 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, but, in the case at hand, where child (plaintiff) has admittedly achieved majority and wants to ascertain her paternity, prayer having been made by her for DNA profiling ought not have been denied, while applying principle of “eminent need”. S.112 of the Indian Evidence Act provides that, “the fact that any person was born during the continuance of a valid marriage between the 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, 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.” But, in the case at hand, since the defendant has specifically denied the factum of his being father of the plaintiff, as such, aforesaid presumption is not applicable to the facts of the present case, simply for the reason that the case as set out by the plaintiff is that she was born out of physical relation between defendant and her mother without having contracted marriage. Otherwise also valuable right of the appellant under the said direction, to prove his paternity through such DNA testing cannot be taken away by asking the appellant to be satisfied with the comparatively weak adverse inference. 14. Otherwise also valuable right of the appellant under the said direction, to prove his paternity through such DNA testing cannot be taken away by asking the appellant to be satisfied with the comparatively weak adverse inference. 14. In any eventuality, in case, the plaintiff is able to prove her case through DNA profiling, she should not be compelled to prove her case by conventional methods including oral and documentary evidence, especially when scientific test in this regard is available. No prejudice whatsoever would be caused to the defendant in case prayer made in the application is allowed, rather, result of the test would help court to adjudicate the controversy at hand in a most effective manner. 15. Consequently, in view of above discussion, the petition is allowed. Order dated 9.8.2018 passed by learned Civil Judge (Senior Division), Court No. VII, Shimla, Himachal Pradesh in CMA No.1262 of 2018 in Civil Suit No.75-1 of 2016, titled Naveeta v. Bhagwan Singh is set aside. Application of the plaintiff is allowed. Learned Court below is directed to take further recourse in accordance with law, for getting the DNA profiling done. Parties to appear before the learned Court below on 22.7.2019. Learned counsel for the parties undertake to ensure presence of the parties on the aforesaid day before the learned Court below. 16. Pending applications, if any, are also disposed of.