ORDER : 1. None appears for respondent No. 1 to 3/defendants even after service of notice through substituted mode by paper publication dated 20.11.2021. 2. Notice sent to defendants No. 1 & 2 on the address have been returned back with a note that “door was locked from inside” and it was not opened from the person present inside the house. Thereafter, when Process Server went to address of defendants No. 1 to 3, upon knocking the door, one of lady stated that “they do not want to accept any notice” and the Process Server returned back the copy of notice with an endorsement as above on 22.10.2021. 3. In view of the above, substituted service has been effected through paper publication upon respondents/defendants No. 1, 2 & 3 and thereafter, case is heard finally. 4. Challenge in this petition is to order dated 30.03.2021 passed by learned Fourth Civil Judge Class-II, Bilaspur whereby learned trial Court dismissed the application under Section 45 of the Indian Evidence Act, 1872 for conducting DNA test of the petitioner/ plaintiff and defendant/respondent No.1. 5. Facts relevant for disposal of this petition are that the petitioner/plaintiff filed a suit for declaration of title, permanent injunction against respondents/defendants No. 1 to 6, pleading therein that the property in dispute is joint ownership property of plaintiff and defendants No. 1 to 4. She is running a beauty parlor business in the part of shop situated at kh. No.616/2. The petitioner/plaintiff is a child born from the relationship of defendants No. 1 & 2. Defendant No.1 was intending to execute document of property in favour of petitioner/plaintiff, but on the objection raised by defendant No.3 who is real sister of petitioner/plaintiff, he could not able to execute the documents in accordance with law. Defendant No.3 also threatened that she will make it prove that plaintiff is not the daughter of defendant No.1 and therefore, the cause of action arose for getting the declaration that petitioner/plaintiff is a child born from the relationship of defendant No.1 & 2 along with other reliefs of share in the property. During pendency of civil suit, petitioner/plaintiff filed an application under Section 45 of the Evidence Act for undergoing DNA test of defendant No.1 to be conducted by Dr. Ankit Tripathi as also from Central Forensic Science Laboratory, Directorate of Forensic Science Services, Ministry of Home Affairs, Govt. of India, Hyderabad. During pendency of civil suit, petitioner/plaintiff filed an application under Section 45 of the Evidence Act for undergoing DNA test of defendant No.1 to be conducted by Dr. Ankit Tripathi as also from Central Forensic Science Laboratory, Directorate of Forensic Science Services, Ministry of Home Affairs, Govt. of India, Hyderabad. This application was replied by respondent No.1/defendant No.1. After considering application, learned trial Court dismissed the application by impugned order. 6. Learned counsel for petitioner/plaintiff submits that the petitioner/plaintiff filed civil suit for declaration that petitioner is a child born from relationship of defendants No. 1 & 2. Until and unless the expert report through scientific method is obtained, lis pending before the Court below cannot be decided. Undergoing DNA test is the only scientific test by which paternity of petitioner /plaintiff can be proved. In reply to application under Section 45 of the Evidence Act, respondent No.1/defendant pleaded that if the Court directs to defendant No.1 to undergo DNA test, defendant No.1 is ready and willing to comply with the orders passed by the Court. Defendant No.1 has not objected to undergo DNA test but even then application under Section 45 of the Evidence Act is dismissed on extraneous consideration recording that unless and until there is satisfaction of the Court, it cannot be ordered. He pointed out that in the application under Section 45 of the Evidence Act as well as in the plaint, petitioner/plaintiff has very specifically pleaded that defendant is aged about 75 years and is suffering from medical ailments. Hence, there is urgency also to order for undergoing DNA test of defendant No.1. He contended that when DNA test is only a scientific method for proving paternity or legitimacy of the birth of petitioner/plaintiff from the relationship of defendants No. 1 & 2 then learned trial Court ought to have allowed the application. He places reliance upon judgment passed in the case of Dipanwita Roy Vs. Ronobroto Roy reported in AIR 2015 SC 418 . 7. Shri Shashi Kumar Kushwaha, learned counsel appearing for respondent No.4 submits that he is having no objection on the submission of learned counsel for the petitioner. 8. Shri Afroj Khan, learned counsel for State/respondent No.5 submits that the State is a formal party. 9. I have heard learned counsel for the parties. 10. 7. Shri Shashi Kumar Kushwaha, learned counsel appearing for respondent No.4 submits that he is having no objection on the submission of learned counsel for the petitioner. 8. Shri Afroj Khan, learned counsel for State/respondent No.5 submits that the State is a formal party. 9. I have heard learned counsel for the parties. 10. Perusal of plaint would show that petitioner/plaintiff has specifically pleaded that her birth was from the relationship of defendants No. 1 & 2. Both of them are still residing as husband and wife. In application under Section 45 of the Evidence Act, it is very specifically pleaded that defendant No.1 is aged 75 years and is suffering from Alzheimer's disease. Even though the other reliefs sought for by the petitioner/plaintiff in the suit is with respect to property, but main relief is with respect to declaration of petitioner/plaintiff to be a child born from the relationship of defendants No. 1 & 2. The other reliefs are consequential. If the paternity of petitioner/plaintiff is not proved, then she will continue to face social insult. For proving legitimacy or paternity of a child or any person, DNA is the only scientific method to prove. 11. Hon'ble Supreme Court in the case of Sharda Vs. Dharmpal reported in (2003) 4 SCC 493 has considered the issue of powers of the Courts to direct a party to undergo medical examination and held as under :- “76. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouses seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase "personal liberty" this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In mattes of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.” 12. Hon'ble Supreme Court in case of Narayan Dutt Tiwari Vs. Rohit Shekhar and Anr. reported in (2012)12 SCC 554, dealing with the issue with regard to paternity declaration while upholding the order passed by the High Court, held as under :- “54. We also find the drawing of adverse inference from refusal to comply with the direction for medical examination to be not sufficient to satiate the need found by the Court. A legal fiction under Section 114 of the Evidence Act, as adverse inference is, is not a reality but which the said provision requires the Court to accept as reality. The Court is not bound to or obliged to draw such adverse inferences (see Emperor V. Sibnath Banerjee, Dhanvantrai Balwantrai Desai V. State of Maharashtra and Fakir Mohd. Vs. Sita Ram). 55. A presumption is not in itself evidence but only makes a prima facie case for parties in whose favour it exists (see Sodhi Transport Co. V. State of UP). As far back as in Damisetti Ramchendrudu V. Damisetti Janakiramanna it was held that presumption cannot displace adequate evidence. The Supreme Court also in Mohanlal Shamji Soni v. Union of India held that it is the rule of law in evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue and the court ought to take an active role in the proceedings in finding the truth and administering justice. 56. 56. Recently in Maria Margarida Sequeria Fernandes V. Erasmo Jack de Sequeria 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”. 57. The impugned judgment refers extensively to the law in this regard in other countries. We are however of the opinion that once the Supreme Court in the judgments supra has held the civil court entitled to issue such a direction, the law in other jurisdictions pales into insignificance.” 13. Hon'ble Supreme Court in case of Dipanwita Roy (supra), held as under:- “10. It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril. 11. The question that has to be answered in this case, is in respect of the alleged infidelity of the appellant-wife. The respondent-husband has made clear and categorical assertions in the petition filed by him under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the appellant-wife. 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 to told DNA test in circumstances is 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.” 14. In the case at hand also, it is not that any of the spouse has filed proceedings against each other and in that proceedings any application is moved for conducting DNA test of the child and putting the child to peril. But in the case at hand, it is the child who filed a suit for declaration to be a child born from the relationship of defendants No. 1 & 2. Hence, her paternity is to be proved, which is also her right to protect her from social insult. Respondent No.1/defendant No.1 also not refused to undergo DNA test but in the reply to application, it is specifically pleaded that if the Court directs, he is ready to undergo the DNA test. 15. In view of the aforementioned discussions, I am of the view that learned Court below erred in rejecting application filed by petitioner/plaintiff under Section 45 of the Evidence Act. 16. 15. In view of the aforementioned discussions, I am of the view that learned Court below erred in rejecting application filed by petitioner/plaintiff under Section 45 of the Evidence Act. 16. Accordingly, this petition is allowed. Impugned order being not sustainable in law is hereby set aside. Application filed by the petitioner/plaintiff under Section 45 of the Evidence Act is allowed and respondent No.1/defendant No.1 is directed to undergo DNA test from the Government Institution mentioned in application. All the expenses of test shall be borne by the petitioner/plaintiff.