Research › Search › Judgment

Orissa High Court · body

2020 DIGILAW 12 (ORI)

Manas Kumar Kar v. Binaya Mishra

2020-01-10

BISWANATH RATH

body2020
JUDGMENT : Biswanath Rath, J. This is an application under Article 227 of the Constitution of India involving a challenge to the order dated 15.10.2014 under Annexure-8 being passed by the Judge, Family Court, Cuttack in C.P. No.7/2006 thereby rejecting an application at the instance of the petitioner-husband for issuing direction for D.N.A. test involving the opposite party-wife arising out of the main dispute for divorce being sought for by the husband, the petitioner. 2. Background involving the case is that the petitioner-husband filed an application before the Family Court, Cuttack under Section 12 of the Hindu Marriage Act to declare the marriage between the petitioner and the respondent as void on the premises that the wife-respondent had conceived and was already pregnant at the time of marriage by a person other than the husband, which fact was not within the knowledge of the petitioner at the time of marriage. The husband filing the application alleged that even the petitioner had no knowledge of pregnancy of the wife till actually the child was born and the petitioner had not lived with her nor there is any marital intercourse after discovery by the petitioner about the fact that the respondent-O.P. was pregnant prior to her marriage by somebody else. Husband alleged that the child was born on 26.11.2005, i.e., exactly six months and fifteen days after the date of marriage in the Capital Hospital at Bhubaneswar. The opposite party-wife after receiving notice in the Civil Proceeding No.7/2006 filed written statement denying the allegation at the instance of the petitioner. This case involves a series of litigations in this Court. W.P.(C) No.13750/2008 was moved by the husband challenging the earlier order of the Family Court dated 18.8.2008 rejecting such application filed by the husband praying for D.N.A. test to find out the parentage of the child. The opposite party-wife filed W.P.(C) No.5673/2008 challenging the order dated 31.3.2008 passed in Misc. Case No.135/2006 arising out of the same Civil Proceeding but the Family Court rejected her prayer for grant of maintenance and only granted litigation expenses of Rs.500/-. Both the writ petitions were disposed of by this Court by common order dated 30.1.2009. The opposite party-wife filed W.P.(C) No.5673/2008 challenging the order dated 31.3.2008 passed in Misc. Case No.135/2006 arising out of the same Civil Proceeding but the Family Court rejected her prayer for grant of maintenance and only granted litigation expenses of Rs.500/-. Both the writ petitions were disposed of by this Court by common order dated 30.1.2009. On the aspect of rejection of the application for D.N.A. test by the husband, this Court directed that if after completion of trial in the event an application is filed by the husband-petitioner for D.N.A. test, the same shall be considered on merit afresh giving due importance to the decision of the Hon’ble apex Court in Sharda vrs. Dharmpal reported in AIR 2003 SC 3450 . This Court further directed for taking steps for early disposal of the Civil Proceeding preferably within six months. So far as W.P.(C) No.5673/2008 is concerned, the same Division Bench of this Court interfering with the impugned order directed for payment of interim maintenance @ Rs.2000/-per month. 3. In the meantime, the matter again visited the High Court through W.P.(C) No.6278 challenging the order dated 12.3.2010 where the Family Court rejecting the application of the husband to summons Dr.Susama Mishra, Gynecologist of Capital Hospital and the Centre Head of Vandana Luthras Slimming and Beauty (VLCC) for examination and also to call for the documents indicated in the petition, i.e., Bed-Head Ticket in respect of the wife. This writ petition was disposed of by a Division Bench of this Court thereby directing the Family Court, Cuttack to issue summons to Dr.Susama Mishra while rejecting the application to summons the Centre Head of VLCC by its order dated 16.3.2011. After the proceeding was further undertaken and closure of evidence based on the direction of this Court in the disposed of writ petitions bearing W.P.(C) Nos.5673/2008 & 13750/2008, the petitioner again filed petition dated 8.5.2014 with a prayer to have the D.N.A. test by collecting blood sample from the petitioner, opposite party and the child involved. Opposite party-wife filed objection to the said application. It appears, the Family Court hearing both sides on the aspect of D.N.A. test was pleased to reject the application by its order dated 15.10.2014 resulting in filing of the present writ petition. 4. Opposite party-wife filed objection to the said application. It appears, the Family Court hearing both sides on the aspect of D.N.A. test was pleased to reject the application by its order dated 15.10.2014 resulting in filing of the present writ petition. 4. Sri S.K.Padhi, learned senior counsel for the petitioner-husband taking this Court to the evidence of P.W.1 to P.W.8, the Doctor more particularly giving defence in relation to the child getting birth after six months and odd days after the marriage as a matured child and further taking this Court to the background involving the allegation involving the case of divorce contended that for the evidence unless there is a D.N.A. test conducted to find out the paternity of the child, there cannot be effective adjudication of the lis. On the premises that the marriage was solemnized on 11.5.2005 and the full-born, i.e., matured child born on 27.11.2005, i.e. after six months and odd days, Sri Padhi, learned senior counsel contended that the petitioner has a strong case to be decided involving the D.N.A. test. Taking this Court to the direction of this Court in the disposed of writ petition bearing W.P.(C) No.13750/2008, Sri Padhi, learned senior counsel also contested the impugned order on the premises of the observation in the disposed of writ petition and for filing of the application for D.N.A. test after the evidence is recorded looking to the defence from the side of the husband as well as wife. Sri Padhi, learned senior counsel for the petitioner on the premises of no rebuttal evidence adduced by the wife in respect of allegation in the plaint on detection of pregnancy on the date of delivery on 27.11.2005 in the Capital Hospital, the cause of ignorance of the husband regarding pregnancy of the wife, wife not moving to any Doctor during her pregnancy accompanying the husband, keeping in view the material evidence through P.W.1, the treating Doctor and Dr.Susama Mishra, contended that there appears, there is a strong prima facie case for D.N.A. test. It is also alleged that the Family Court failed in appreciating the ground for D.N.A. test and thereby arriving at wrong and illegal impugned order. Sri Padhi, learned senior counsel for the petitioner referring to the decisions of the Hon’ble apex Court in Dipanwita Roy vrs. Ronobroto Roy : (2015) 1 SCC 365 , Goutam Kundu vrs. It is also alleged that the Family Court failed in appreciating the ground for D.N.A. test and thereby arriving at wrong and illegal impugned order. Sri Padhi, learned senior counsel for the petitioner referring to the decisions of the Hon’ble apex Court in Dipanwita Roy vrs. Ronobroto Roy : (2015) 1 SCC 365 , Goutam Kundu vrs. State of West Bengal & another : (1993) 3 SCC 418 and Sharda vrs. Dharmpal : AIR 2003 SC 3450 submitted that the petitioner has otherwise a case supported by law of the land. Sri Padhi thus made a prayer to this Court for interfering with the impugned order and setting aside the same thereby issuing a direction to the Family Court for conducting D.N.A. test through competent authority. 5. Sri A.K.Jena, learned counsel for the opposite party-wife, on the other hand, taking this Court to the objection of the wife to the allegation of the husband through the objection to the Civil Proceeding as well as the objections by the wife to the application for D.N.A. test, in the first instance, also in the second instance, further taking this Court to the evidence led by the parties attempted to justify the rejection of the application for D.N.A. test by the Family Court, Sri Jena, learned counsel appearing for the O.P.-wife placed reliance on series of decisions in Goutam Kundu Versus State of West Bengal & another : AIR 1993 SC 2295 , Nirakar Das vrs. Gourhari Das & others : 1995(I) OLR-526, Smt. Kamti Devi & another vrs. Poshi Ram : AIR 2001 SC 2226 , Sharda vrs. Dharmpal : AIR 2003 SC 3450 , Renubala Moharana & another vrs. Meena Mohanty & others : 2004 (I) OLR (SC)-616, Banarsi Dass vrs. Teeku (Mrs) & another : 100 (2005) CLT-73 (SC), Shyam Lal alias Kuldeep vrs. Sanjeev Kumar & others : AIR 2009 SC 3115 , Bhabani Prasad Jena vrs. Convenor Secretary, Orissa State Commission for Women & another : 2010 (II) OLR (SC)-575, Chinmayee Mohanty @ Kamila vrs. Krushna Narayan Kamila : 2012(I) CLR-222, Narayan Dutt Tiwari vrs. Rohit Shekhar & another : (2012) 12 SCC 554, Nandlal Wasudeo Badwaik vrs. Lata Nandlal Badwaik & another : AIR 2014 SC 932 and Dipanwita Roy vrs. Ronobroto Roy : (2015) 1 SCC 365 and for the grounds involving rejection of the order attempted to justify the impugned order. 6. Krushna Narayan Kamila : 2012(I) CLR-222, Narayan Dutt Tiwari vrs. Rohit Shekhar & another : (2012) 12 SCC 554, Nandlal Wasudeo Badwaik vrs. Lata Nandlal Badwaik & another : AIR 2014 SC 932 and Dipanwita Roy vrs. Ronobroto Roy : (2015) 1 SCC 365 and for the grounds involving rejection of the order attempted to justify the impugned order. 6. Hearing the rival contentions of the parties, the pleadings, the evidence and the material available on record as well as the decisions cited from both sides, this Court finds, in filing the Civil Proceeding No.7/2006 involving the divorce under Section 12 of the Hindu Marriage Act, the petitioner in paragraphs-3, 4 & 5 has made the following specific allegations. “3. That the petitioner had also no knowledge of the pregnancy of the respondent till actually the child was born and the petitioner has not lived with her nor there is any marital intercourse with the respondent after discovery by the petitioner about the fact that the respondent was pregnant prior to her marriage by somebody else. The child of the respondent was born on 26.11.2005, i.e., six months and fifteen days after the date of marriage at Capital Hospital, Bhubaneswar. 4. That it is humbly submitted and reiterated that the petitioner was not aware of the fact of pregnancy of the respondent on the date of marriage and after the marriage till the child was born on 26.11.2005 and after giving birth to the illegitimate child, the respondent is living with her parents at Cuttack. 5. That it is humbly submitted that the marriage between the petitioner and the respondent was an arranged marriage and the petitioner did not know the family of the respondent nor had any acquaintance with any of her near relatives and had no scope to know about the past of the respondent.” This apart, paragraph-6 also discloses that based on a matrimonial advertisement in “The Samaj” inviting petitioner’s marriage, the wife’s father showed interest and entered into negotiation. After the formal visit, an interaction between the two families, the marriage was fixed and that too before the marriage, the respondent-wife had not interacted with him even after the marriage date was fixed. Through telephonic conversation, the petitioner was assured by the wife that she had no premarital affair and she was not pressurized from her parents for marriage. The marriage was held on 11.5.2005. Through telephonic conversation, the petitioner was assured by the wife that she had no premarital affair and she was not pressurized from her parents for marriage. The marriage was held on 11.5.2005. In the meantime, on 1st June, i.e., few days after the marriage, a person namely Bulu telephoned the petitioner and wanted to disclose some facts about his wife. The petitioner was shocked to hear the disclosures made by said Bulu. The husband specifically averred that he came to know this only after eighteen days of the marriage. 7. On perusal of the Civil Proceeding Petition, this Court finds, the petitioner-husband has the specific allegation in paragraphs-6.6 to 6.52 narrating his firm opinion on the premarital relationship with the wife also disclosed that the family members after coming to know the premarital affairs involving outsider with the wife attempted to settle the matter by entering into amicable divorce, which attempt was subsequently avoided counseling the petitioner to undertake the exercise of divorce under Section 12 of the Family Courts Act. 8. Opposite Party-wife in her written statement while denying the allegation made by the husband submitted that the allegations are not only false but also imaginary. She denied having premarital relationship as well as premarital pregnancy. She while denying to have given birth of child on 26.11.2005 contended that petitioner by filing such false application attempted to brand the child illegally and also to ill-repute the wife. She even denied the husband’s claim that they were not known to each other previously. She also claimed that the statement in paragraphs-6.15 to 6.52 to be false. She claimed that the child born through them was not a full-grown child and thus objected entertainability of the Section 12 of Family Courts Act petition. She has the specific claim that she got pregnant for cohabitation with the petitioner and claimed that the child born through them was a premature baby. With this pleading, the wife claimed for dismissal of the case. 9. It appears, after the decision of this Court in W.P.(C) No.13750/2005 and after the closure of the evidence, the petitioner filed the petition asking the Family Court for having a D.N.A. test to find the paternity of the child to have effective adjudication of the dispute. Petitioner in Paragraphs-4, 5, 6 & 8 of the petition filed for D.N.A. test submitted as follows : “4. Petitioner in Paragraphs-4, 5, 6 & 8 of the petition filed for D.N.A. test submitted as follows : “4. That petitioner humbly submits that the Opp.Party has never disclosed about her conceive and she had been posed about monthly menstruation once in each month. That respondent had joined at Health Reduction Centre namely at VLCC, Bhubaneswar to reduce her weight of 10 Kg from 83 Kt on dtd.26.8.2005 (prior to three month from the delivery). The respondent has also admitted in her evidence regarding admission in VLCC. Moreover the Opp. Party accompanied with petitioner in Honeymoon trip at the places of Darjiling, Gangtok from dtd.22.10.2005 to dtd.1.11.2005 for which petitioner was no scope to ascertain about conceive of respondent. But surprisingly Opp.Party gave birth to a male child on dtd.27.11.2005 at the Capital Hospital i.e. 6 months and 15 days after the date of marriage and 6 months from the date of consummation. Since the petitioner was unaware about pregnancy of the Opposite Party and also Opp. Party had concealed her pregnancy at the time of marriage of which suit for dissolution of marriage was preferred under Section 12 of Hindu Marriage Act to declare the marriage as void and nullity. 5. Furthermore, petitioner humbly submits that the new born child took birth on dtd.27.11.2005 at about 4.50 A.M. in Capital Hospital. The new born baby was matured one and was able to suck milk from mother’s breast and also the baby was weighing 3 Kg as per Exhibit-1/d and as per admitted evidence of treating Doctor namely, Dr.Susma Mishra, PW-8. Furthermore, petitioner humbly submits that the child was not premature baby and the baby took birth as fully matured baby weighing of 3 Kg. having capacity for breast feeding. That due to full term (fully matured baby) there was no need on the part of treating Doctor to recommend for any treatment of the child. The exhibited documents vide Exhibit-1 and Exhibit-1/d and exhibited documents vide Exhibit-A and Exhibit-A/1 substantiated that the new born child was full term and fully matured baby having weight of 3 Kg with normal delivery. 6. Furthermore, plaintiff humbly submits that it is established as per the evidence deposed by PW-1 and PW-8 that the child was matured with full term baby. The evidences of PW-1 to PW-8, Dr. 6. Furthermore, plaintiff humbly submits that it is established as per the evidence deposed by PW-1 and PW-8 that the child was matured with full term baby. The evidences of PW-1 to PW-8, Dr. Susama Mishra has categorically admitted and deposed by adducing evidence and by exhibiting relevant documents to substantiate the new born child was matured having 3 Kg weight and new born child was full term baby for which it is established as per evidence on record such full term baby cannot took birth within a span of 6 months and 15 days in any manner. 8. Furthermore, petitioner humbly submits that PW-8, Dr. Susama Mishra has categorically adduced in paragraph-3 as follows : “Para-3-I have not mentioned in Ext.1 the last menstruation period of Binaya as she told me that she was not sure about the date of the period of such last menstruation. She had not showed me any medical prescription issued earlier by any medical officer.” Furthermore, PW-8 Dr.Susma Mishra has also categorically admitted in Paragraph-4 of her examination in chief that “the baby was a matured one and was able to suck milk from Binaya’s breast.” That PW-8 has also categorically deposed in paragraph-5 of her examination in chief that a new born baby which has remained in mother’s womb for 6 months and 15 days would normally weigh 600 grams to 1000 grams. Further P.W-8, Dr. Susama Mishra has categorically admitted in paragraph-7 of her cross-examination as follows : Para-7 Ext-A, except the heading portion and Ext.A/1 are in my handwriting. The signatures below Ext.A are mine. The signature of Ext.A/1 is of Dr. H.P.Ratha who had discharged the patient and I am acquainted with his handwriting and signature. Ext.A/1 shows that the child was of 3 Kgs. Weight. There is no mention of any treatment of new born baby in Ext.1/d. the baby was not referred to any child specialist. Usually in case of delivery of premature babies, the babies are referred to child specialist for treatment. In Ext.1/d the digit ‘2’ as regards the weight of the baby is not in my handwriting. Weight. There is no mention of any treatment of new born baby in Ext.1/d. the baby was not referred to any child specialist. Usually in case of delivery of premature babies, the babies are referred to child specialist for treatment. In Ext.1/d the digit ‘2’ as regards the weight of the baby is not in my handwriting. Originally I had written the weight of the child as 3 Kgs., C.D.M.O., Bhubaneswar has enquired about the addition of this digit ‘2’ in Ext.1/d pursuant to the complaint of petitioner husband and during that enquiry C.D.M.O. had asked me about such entry in Ext.1/d and I had given a written report in this matter to C.D.M.O. Since this baby was a healthy one, there was no necessity for me to refer the case to any child specialist. Exts.1 and 1/d show that this baby was a matured and healthy one. When I examined Binaya Kar for her delivery no female relative of her was present with her. At that time she had also not produced before me her previous medical documents.” Under aforesaid facts and circumstances, it is conclusive evidence that new born child was of full term baby weighing 3 Kgs. And also the said birth was not premature birth. That it is settled principle of law that it is proper to conduct the DNA test after evidences adduced by plaintiff. In the instant case, the DNA test is required to find out parentage of child which will determine real controversy between parties.” In addition to the above, the petitioner-husband filed written notes of argument thereby while demonstrating the specific pleadings in the plaint also attempted to demonstrate the evidence led by both sides. 10. In response to the above, the wife filed an objection. Reading of the objection at Annexure-6 at the instance of the respondent-wife, it appears, she has virtually denied all the allegations involving the application seeking direction for D.N.A. test. With the specific pleading on the birth of the child, Paragraphs-9 & 10 read as follows :- “9. That admittedly marriage between both the parties was solemnized on 11.5.2005 and as per the customs of petitioner’s family, marriage was consummated on the same day i.e. on 11.5.2005 after completion of marriage. With the specific pleading on the birth of the child, Paragraphs-9 & 10 read as follows :- “9. That admittedly marriage between both the parties was solemnized on 11.5.2005 and as per the customs of petitioner’s family, marriage was consummated on the same day i.e. on 11.5.2005 after completion of marriage. As per the statement of P.W.2 i.e. Manaswini Panda, the sister of the petitioner in cross-examination para-20 stated that “on the day of marriage of the parties during evening time Chatruthi Homa was performed. On that very day the parties slept together. Furthermore Arnapurna Kar, P.W.4, the mother of the petitioner in cross-examination para-16 stated that “on the day of marriage of my son the Chatruthi Home was also done and in that night my son and Binaya slept together in their room and in our Brahmin family marriage is done at day time”. Furthermore P.W.7 the father of the petitioner in cross-examination para-14 stated that “the marriage of the petitioner was conducted at day time. On 11.5.2005 Chatruthi Homa was completed and on the very day petitioner and Opp.Party slept in the room. After marriage till delivery Opp.Party stayed in our house. 10. That as per the statement of father, mother and sister of the petitioner marriage was consummated on 11.5.2005. So the averment made by the petitioner, that marriage was consummated on 16.5.2005 is absolutely baseless story created by the petitioner himself. Law is well settled that “a new born baby, born alive 174 days after the last possible date when intercourse with the husband could have taken place, and which survived, was held to be legitimate”. It is respectfully submitted here that intercourse by the husband admittedly held on 11.5.2005 and new born child was born on 27.11.2005 so from the date of intercourse till delivery of the child i.e. 201 days (six months and twenty one days). The medical theory says 174 days held to be legitimate but in the present case child was born on 201 days so the child is held to be legitimate.” From reading of the cross-examination of D.W.1, this Court finds, in paragraph-23 the wife has deposed as follows : “23. The medical theory says 174 days held to be legitimate but in the present case child was born on 201 days so the child is held to be legitimate.” From reading of the cross-examination of D.W.1, this Court finds, in paragraph-23 the wife has deposed as follows : “23. It is not a fact that I have not mentioned in the FIR lodged in Madhupatana P.S. that after birth of my child from the hospital my husband saying that my child did not belong to him, left me since then. It is not a fact that after birth of my child my husband has never come to me nor kept relationship with me in any manner till filing of this case. My marriage took place on 11.5.2005 and my child was born on 27.11.2005. It is not a fact that during my stay in my in-laws house I have never disclosed before anybody about my pregnancy. Rather I was disclosing before others that I have having monthly menstruation regularly. During my stay in my in-laws house, I was visiting VLC. People used to go there to reduce their health and to maintain their beauty. It is not a fact that out of my sweet will I was going to VLCC in the month of August, 2005 to reduce my health, but not being pressurized by my husband. It is not a fact that nobody from my in-laws family was present at the time of my delivery and that in the hospital before my sister Bijaya I confessed that my said child born to me was through my boy friend Deepak Sahu @ Bulu for which I would donate that child to the nursing sister. I am prepared for DNA test, if the petitioner is willing for that. It is not a fact that I have manufactured the X-ray plates relating to my child filed in this case and that since I had concealed before others about my conception I agreed to go with my husband to Darzling. I had gone at that time being pressurized by my husband. It is not a fact that it was my pleasure trip then to go to Darzling.” 11. Similarly from the evidence of P.W.1 to P.W.8, it also becomes clear that the child born was not only matured but was also a full-term baby. I had gone at that time being pressurized by my husband. It is not a fact that it was my pleasure trip then to go to Darzling.” 11. Similarly from the evidence of P.W.1 to P.W.8, it also becomes clear that the child born was not only matured but was also a full-term baby. P.W.8, Dr.Susama Mishra in paragraphs-3, 4, 5 & 7 of her chief averred as follows :- “3. I have not mentioned in Ext.1 the last menstruation period of Binaya as she told me that she was not sure about the date of the period of such last menstruation. She had not shown me any medical prescription issued earlier by any medical officer. 4. As the aforesaid baby ticket the child was weighing 2 Kgs. and 300 grams. The baby was a matured one and was able to suck milk from Binaya’s breast. 5. A new born baby which has remained in mother’s womb for 6 months and 15 days would normally weigh 600 grams to 1000 grams.” 7. Ext.A, except the heading portion and Ext.A/1 are in my handwriting. The signatures below Ext.A are mine. The signature in Ext.A/1 is of Dr.H.P.Ratha, who had discharged the patient and I am acquainted with his handwriting and signature. Ext.A/1 shows that the child was of three Kgs. weight. There is no mention of any treatment of new born baby in Ext.1/d. The baby was not referred to any child specialist. Usually in case of delivery of premature babies, the babies are referred to child specialist for treatment. In Ext.1/d the digit ‘2’ as regards the weight of the baby is not in my handwriting. Originally I had written the weight of the child as 3 Kgs. C.D. M.O., Bhubaneswar has enquired about the addition of this digit ‘2’ in Ext.1/d pursuant to the complaint of petitioner husband and during that enquiry C.D.M.O. had asked me about such entry in Ext.1/d and I had given a written report in this matter to C.D.M.O. Since this baby was a healthy one there was no necessity for me to refer the case to any child specialist. Exts.1 and 1/d show that this baby was a matured and healthy one. Exts.1 and 1/d show that this baby was a matured and healthy one. It is not a fact that as Binaya Kar cried before me saying that she had given birth to this child six and half months after her marriage, I to favour her furnished reports concealing truth. When I examined Binaya Kar for her delivery no female relative of her was present with her. At that time she had also not produced before me previous medical documents.” 12. Looking to the pleading and evidence of the parties, this Court finds, there remains no dispute that the marriage between the parties held on 11.5.2005 and the child as per the Medical Certificate got birth on 27.11.2005 thereby leaving no doubt that the child was born after six months and 17 days of the marriage. Doctor’s evidence also makes it clear that the child born through the wife was a full-born baby even doctors have gone to the extent of establishing that in case of premature baby, the weight of such baby would be at a very lower side. It becomes clear that the Civil Proceeding was filed for divorce under Section 12 of the Hindu Marriage Act on the pretext of premarital relationship of the wife with a person other than the husband and the full-born child having got birth after six months and 15 days of the marriage. 13. Considering the contentions of the parties that for the provision at Section 112 of the Evidence Act, no D.N.A. test is required as the child born after the period prescribed will be presumed to be a legitimate child and for the opinion of this Court, this provision has no application to the case at hand for the peculiar admitted position involved herein clearly establishing that the child got birth hardly six months and odd days after the date of marriage. 14. This being the position, this Court is now to proceed to examine the decisions cited at Bar by both the parties to come to a conclusion as to the need of a D.N.A. test in the circumstance. In the case of Gautam Kundu (supra), Hon’ble apex Court in paragraphs-18, 24 & 26 observed as follows :-“18. Blood grouping test is a useful test to determine the question of disputed paternity. In the case of Gautam Kundu (supra), Hon’ble apex Court in paragraphs-18, 24 & 26 observed as follows :-“18. Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for this refusal. 24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”. 26. From the above discussion it emerges- (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 analysis.” However, this case involving the marriage took place on 16th January, 1990 and the wife conceived in the month of April, 1990, i.e., after marriage and when she was residing in her matrimonial home to appear in Higher Secondary Education commenced on 5th April, 1990 and continued up to 10th May, 1990. There was abortion taking place. She came back to the matrimonial home during Durga Puja in the month of October, 1990 and a female child was born on 3rd January, 1991 and the case involved a petition under Section 125, Cr.P.C. involving consideration of a case for D.N.A. test. Facts of course are not in the line of the case at hand. The case of Sharda vrs. Facts of course are not in the line of the case at hand. The case of Sharda vrs. Dharmal (supra) involves a divorce proceeding involving a case of mental illness requiring medical examination of one of the parties and it has no application to the case at hand for the change of facts involving the case. This case involves D.N.A. test of a son born to the parties and again involving the allegation of adulterous relationship to establish the paternity/adultery of the child. In paragraphs-13, 16 & 17 of the decision, Hon’ble apex Court held as follows :- “13. The decision rendered by various courts of this country including this Court lead to a conclusion that a decree for divorce in terms of Section 13(1)(iii) of the Act can be granted in the event the unsoundness of mind is held to be not curable. A party may behave strangely or oddly inappropriate and progressive in deterioration in the level of work may lead to a conclusion that he or she suffers from an illness of slow growing developing over years. The disease, however, must be of such a kind that the other spouse cannot reasonably be expected to live with him or her. A few strong instances indicating a short temper and somewhat erratic behavior on the part of the spouse may not amount to his/her suffering continuously or intermittently from mental disorder. 16. The Hindu Marriage Act or any other law governing the field do not contain any express provision empowering the Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination. However, in our opinion, this does not preclude a court from passing such an order. We may, however, notice that such provisions have expressly been inserted in England by way of Sections 22 and 23 of the Family Law Reform Act, 1987 on the recommendations of the Law Commission. Section 23 is to the following terms: "23. However, in our opinion, this does not preclude a court from passing such an order. We may, however, notice that such provisions have expressly been inserted in England by way of Sections 22 and 23 of the Family Law Reform Act, 1987 on the recommendations of the Law Commission. Section 23 is to the following terms: "23. Provisions as to scientific tests (1) For Sub-sections (1) and (2) of Section 20 of the Family Law Reform Act, 1969 (power of court to require use of blood tests) there shall be substituted the following subsections - (1) In any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings, give a direction - (a) for the use of scientific tests to ascertain whether such tests show that a party to the proceedings is or is not the father or mother of that person; and (b) for the taking, within a period specified in the direction, of bodily samples from all or any of the following, namely, that person, any party who is alleged to be the father or mother of that person and any other party to the proceedings; and the court may at any time revoke or vary a direction previously given by it under this subsection." 17. The English courts at one point of time held that the Court had no power to order a blood test on the ground that it would be a battery which no court may authorize. (See S. v. S.W. v. Official Solicitor [1972] AC 24). 15. Coming to consider the citations at the instance of the opposite parties, this Court finds, the decision in Nirakar Das vrs. Gourhari Das (supra) has no application to the case at hand at all. In the decision in Chinamayee Mohanty @ Kamila (supra), this Court in its Division Bench in paragraph-16 therein held that before ordering for D.N.A. test, the court must have arrived at a finding that the applicant had a strong prima facie case and the court must have sufficient material before it enables it to exercise its discretion. It is for the Family Court not applying its mind to the above defect, the Division Bench of this Court interfering with the order set aside the same. It is for the Family Court not applying its mind to the above defect, the Division Bench of this Court interfering with the order set aside the same. In case of Bhabani Prasad Jena (supra), Hon’ble apex Court considering the requirement of D.N.A. test from the point of view of extreme delicate and sensitive aspect in paragraphs-13 & 14 observed as follows :- “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. 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 Kundu1 and Sharda. 14. There is no conflict in the two decisions of this Court, namely, Goutam Kundu1 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 Sharda2 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. Insofar 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. In case of Banarsi Dass (supra), while deciding the duty of court in ordering for D.N.A. test, Hon’ble apex Court in paragraphs-10 & 13 held as follows :- “10. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage of filiation (parentage) may be presumed, the law in general presuming against vice and immorality. 13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modem 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 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. (See Kamti Devi (Smt.) and Anr. v. Poshi Ram ( 2001 (5) SCC 311 ).” The decisions in Smt. Kamti Devi (supra) and Renubala Moharana (supra) since stand on different footing and have no application at all to the case at hand. Paragraphs-21, 39, 40, 41 & 42 of the decision in Shyam Lal alias Kuldeep (supra) read as follows :- “21. v. Poshi Ram ( 2001 (5) SCC 311 ).” The decisions in Smt. Kamti Devi (supra) and Renubala Moharana (supra) since stand on different footing and have no application at all to the case at hand. Paragraphs-21, 39, 40, 41 & 42 of the decision in Shyam Lal alias Kuldeep (supra) read as follows :- “21. In the impugned judgment, the High Court observed that in the present case admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her marriage with the deceased Balak Ram. Therefore, in the absence of cogent and reliable evidence as to non-access on the part of the deceased Balak Ram, presumption under Section 112 of the Indian Evidence Act would be available and it will have to be held that plaintiff and defendants are sons of deceased Balak Ram. 39. The findings of the High Court on the interpretation of Section 112 of the Evidence Act are based on correct analysis of Indian and English cases for the last more than a century. According to the legislative intention and spirit behind Section 112 of Evidence Act it is abundantly clear that once the validity of marriage is proved then there is strong presumption about the legitimacy of children born out of that wedlock. 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. 40. In the instant case, admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her valid marriage with the deceased Balak Ram. Their marriage was in fact never dissolved. There is no evidence on record that the deceased Balak Ram at any point of time did not have access to Smt. Durgi. According to the clear interpretation of section 112 of the Evidence Act, there is strong presumption about the legitimacy of children born out of continuation of the valid marriage. 41. It is well settled principle of law that Odiosa et inkonesta non sunt in lege prae sumenda (nothing odious or dishonourable will be presumed by the law). The law presumes against vice and immorality. In a civilized society it is imperative to presume legitimacy of a child born during continuation of a valid marriage and whose parents had "access" to each other. 42. The law presumes against vice and immorality. In a civilized society it is imperative to presume legitimacy of a child born during continuation of a valid marriage and whose parents had "access" to each other. 42. It is undesirable to enquire into paternity of a child whose parents "have access" to each other. Section 112 of the Evidence Act is based on presumption of public morality and public policy.” Paragraphs-15, 16, 17, 18 & 19 of the decision in Nandlal Wasudeo Badwaik (supra) read as follows :- “15. From a plain reading of the aforesaid, it is evident that a child born during the continuance of a valid marriage shall be a conclusive proof that the child is a legitimate child of the man to whom the lady giving birth is married. The provision makes the legitimacy of the child to be a conclusive proof, if the conditions aforesaid are satisfied. It can be denied only if it is shown that the parties to the marriage have no access to each other at any time when the child could have been begotten. 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.” Through (2009) 12 SCC 454 , it is observed that once validity of marriage is proved then there is strong presumption about the legitimacy of children born from that wedlock. The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence. Even the evidence of adultery by wife which though amounts to very strong evidence, it by itself is not quite sufficient to repeal this presumption and will not justify the finding of illegitimacy if husband has had access. (1993) 3 SCC 418 and AIR 2003 SC 3450 when did not rule out the conducting of D.N.A. test, 2009 (12) SCC 454 , 2010(8) SCC 633 and (2014) 2 SCC 576 find possibility of proof on such allegations only through D.N.A. test. The classic difference in between all the cases tested in the meantime and the case at hand is where a husband challenges parentage of the child born after their admitted marriage having born only after six months and 17 days that too with specific case of the husband that he had no premarital relationship with the wife, this Court is of the view that the only test to prove such disputes is to have the D.N.A. test and in such situation, there should not have obstruction on the part of the Court to allow the application requiring direction for D.N.A. test. Further the D.N.A. test being the only legitimate and scientifically perfect means in the given situation to order for D.N.A. test is the only remedy. Looking to the nature of dispute and required proof, this Court also observes, such presumption can only be based on strong, clear and cogent, lastly on satisfactory and conclusive evidence. Thus there is no other way to go. Looking to the nature of dispute and required proof, this Court also observes, such presumption can only be based on strong, clear and cogent, lastly on satisfactory and conclusive evidence. Thus there is no other way to go. It is here this Court records the statement of wife in her cross-examination in paragraphs-19 to 24, which reads as follows :- “19. I am M.A. in Psychology. My marriage with petitioner was an arranged one. There was no mediator in my marriage. Prior to my marriage I was serving at Mumbai. At Mumbai I was living in the house of my father’s younger brother Pradipta Kumar Mishra. It is not a fact that I have no such uncle and that at Mumbai I was living alone in a mess. Myself and petitioner are Brahmin caste. As per our custom Chaturthee is observed on 4th day after marriage. But petitioner’s mother and sister told me to observe my Chaturthee on the same day as my marriage. In the night of 11.5.2005 for the first time there was sexual cohabitation between me and petitioner. 20. I have not filed any case for restitution of my conjugal rights and to declare that my son has been born out of my wedlock with petitioner. A Brahmin married woman always wear a vermilion. Today I am not wearing vermilion. It is not a fact that from the time of filing the present case I am not wearing vermilion and sankha. As I have given mukhagnee to my father I am not wearing vermilion now. I have not lodged any F.I.R. against petitioner and his family members alleging dowry torture on me. Ext.2 is certified copy of F.I.R. lodged by me at Madhupatna P.S. on 18.4.2007. The contents of this F.I.R. are in my own hand. It is a fact that I have indicated in this F.I.R. that on 27.11.2005 after I gave birth to my child petitioner being influenced by his sister tortured me physically and mentally and left me and my child in my father’s house. 21. It is not a fact that from 27.1.2005 I have not gone petitioner’s house at Nayapalli and from that I am continuously living in my father’s house. As petitioner had applied for the birth certificate of my son I had not applied for it. 21. It is not a fact that from 27.1.2005 I have not gone petitioner’s house at Nayapalli and from that I am continuously living in my father’s house. As petitioner had applied for the birth certificate of my son I had not applied for it. It is not a fact that petitioner has never applied for the birth certificate for my son. In the present case, I have not filed that birth certificate. Ext.3 is my signature in V.L.C.C. Health Care Limited receipt. A major portion of the note book which is marked as Ext.4 is in my handwriting. Exts.5 & 5/a to 5/1 are photographs having my photograph. I cannot say if the document marked ‘X’ is the certified copy of F.I.R. lodged by petitioner at Nayapalli P.S. against me and others. The persons appearing in the aforesaid photograph are petitioner and his friends. The petitioner had forced me to go to Darjling where these photographs have been taken. These photographs were taken towards the end of October. In Ext.5/g I am sitting on a yak. 22. I do not remember the date but in the month of October, 2005, I had accompanied my husband to Darjling. I have not filed the urine test report of mine as the said report was in the house of the petitioner. All the medical reports regarding my conception i.e. ultra sound report etc. were with my husband for which I could not file the same. It is not a fact that I have not undergone any test regarding my conception, when I was staying with my husband. I have not mentioned the date of my LMP in my written statement. I had no menstruation during my stay in my in-laws house after marriage. One lady doctor delivered my child but I cannot say if she was Dr.Sushama Mishra. The said lady doctor talked with my husband about my predelivery test reports if any. So the doctor did not ask me about the same. It is not a fact that on being asked by the doctor, I could not disclose my LMP before her. It is not a fact that the weight of the new born child was 3 Kg. My delivery was a normal one. But at the time of my delivery my private part was stitched. It is not a fact that on being asked by the doctor, I could not disclose my LMP before her. It is not a fact that the weight of the new born child was 3 Kg. My delivery was a normal one. But at the time of my delivery my private part was stitched. It is not a fact that the new born child was not referred to Pediatric Specialist for further management as the child was a full grown child. It is not a fact that I have manipulated Ext.1/d in the place of weight of the child mentioned. It is not a fact that my child was not prematurely born for which no advice was given by any Pediatric consultancy and that his weight was not 2.3 Kg. It is not a fact that I have not relied upon the documents vide Ext.D to J in my W/S nor I had filed the same at the time of filing of W/S and that after closure of evidence from the side of the petitioner I having manufactured those documents filed in the court subsequently. These documents are relating to the period of post delivery of my child. It is not a fact that the documents vide Ext.D to Ext.H were beyond the knowledge of the petitioner and the same were manufactured for the purpose of this case and that Ext.J has also been manufactured by me. 23. It is not a fact that I have not mentioned in the F.I.R. lodged in Madhupatna P.S. that after birth of my child, from the hospital my husband saying that my child did not belong to him left me since then. It is not a fact that after birth of my child my husband has never come to me nor kept relationship with me in any manner till filing of this case. My marriage took place on 11.5.2005 and my child was born on 27.11.2005. It is not a fact that during my stay in my in-laws house I have never disclosed before anybody about my pregnancy. Rather I was disclosing before others that I was having monthly menstruation regularly. During my stay in my in-laws house, I was visiting VLCC. People used to go there to reduce their health and to maintain their beauty. It is not a fact that during my stay in my in-laws house I have never disclosed before anybody about my pregnancy. Rather I was disclosing before others that I was having monthly menstruation regularly. During my stay in my in-laws house, I was visiting VLCC. People used to go there to reduce their health and to maintain their beauty. It is not a fact that out of my sweet will I was going to VLCC in the month of August, 2005 to reduce my health, but not being pressurized by my husband. It is not a fact that nobody from my inlaws family was present at the time of my delivery and that in the hospital before my sister Bijaya I confessed that my said child born to me was through my boy friend Deepak Sahu @ Bulu for which I would donate that child to the nurshing sister. I am prepared for DNA test if the petitioner is willing for that. It is not a fact that I have manufactured the X-ray plates relating to my child filed in this case and that since I had concealed before others about my conception I agreed to go with my husband to Darzling. I had gone at that time being pressurized by my husband. It is not a fact that it was my pleasure trip than to go to Darzling. 24. It is not a fact that on 26.11.2005 I had gone to the hospital complaining stomach pain and till the delivery of the child, neither the petitioner nor anybody of his family was aware of the fact of my pregnancy. It is not a fact that at the time of marriage, there was no demand of dowry from the side of the petitioner nor any gold ornaments or any other dowry articles were given at the time of my marriage and that I was never tortured in my inlaws home. I have not filed any dowry torture case against the petitioner. It is not a fact that on the day of marriage in the night I had no cohabitation with the petitioner rather we had cohabitation in the night of 16.5.2005. It is not a fact that I had confessed before my husband over mobilephone saying that I had conceived at Bombay through another person. It is not a fact that on the day of marriage in the night I had no cohabitation with the petitioner rather we had cohabitation in the night of 16.5.2005. It is not a fact that I had confessed before my husband over mobilephone saying that I had conceived at Bombay through another person. It is not a fact that during my stay in my inlaws house I was taking medicine on the pretext of gastritis and that prior to marriage I had conceived which was beyond the knowledge of my husband and that I was not undergoing any treatment regarding my pregnancy to the knowledge of my husband and that I am staying presently with Deepak Sahu at Puri and that my marriage is void ab initio since from the beginning I had concealed before my husband about the fact of my pregnancy prior to my marriage and that since the petitioner is not the father of my minor son, he is not entitled to get maintenance from the petitioner and that I am deposing falsehood.” For the clear denial of the wife through her evidence, this Court again finds, no effective conclusion involving the issue involved herein can be reached minus a blood test. Through her evidence in paragraph-23, wife is ready for such test. 16. This Court on perusal of the order impugned finds, not only the impugned order remains contrary to the legal position settled through the above decisions but also in misapplication of provision at Section 112 of the Evidence Act and also in proper assessment of the evidence led by the parties. It is on the other hand, the pleading of parties, the evidence led so far and the law of land lean in favour of the petitioner. 17. This Court accordingly interfering with the impugned order dated 15.10.2014 in C.P. No.7/2006 sets aside the same and while allowing the application at the instance of the husband-petitioner to have the D.N.A. test directs the D.N.A. test of the son of the wife-O.P. to be conducted either at the Central or the State Forensic Science Laboratory available in the State on 22nd January, 2020. The wife will accompany the son to the Laboratory at 11 A.M. of the date fixed in the vehicle arranged at the cost of the husband when the petitioner herein shall also be present to have his blood sample to be drawn by the competent authority along with the blood of the child and the wife. The entire expenses for the procedure shall also be borne by the husband. Blood samples shall be drawn in presence of all the three involved. The report of the Lab shall be submitted to the Family Court within ten days thereafter. At the same time, keeping in view that there is possibility of attempt of tarnishing the prestige of the wife as well as the child involved by the husband, the husband is directed to deposit a sum of Rs.2,00,000/-(rupees two lakh) in the Family Court before the date fixed for drawing blood sample. It is clarified that in the event the husband succeeds, the entire amount with interest accrued thereon will be refunded to the husband and in the event the wife succeeds, the entire sum with interest accrued will be distributed equally amongst the wife and the son involved. This court also makes it clear that the observation whatsoever made herein above is only in respect of present consideration and the finality of the proceeding will be dependent on pleadings and materials available on record. 18. The writ petition succeeds. In the circumstance, there is no order as to cost.