JUDGMENT : Hon'ble Rahul Chaturvedi, J. [1] Heard Sri Manish Tiwari, learned Senior Counsel assisted by Sri Ausim Luthra and Sri Manu Srivastava, learned counsels for the applicant, Sri Hari Om Rai and Sri Hardev Prajapati, learned counsel for the private opposite party, learned A.G.A. for the State of Uttar Pradesh at length and perused the records. Since, the pleadings have been exchanged between the parties and the matter is ripe for final submissions. Keeping in view that the applicant/revisionist are the one and the same person Dr. Ifraq @ Mohammad Ifraq Husain and the gravamen of both the proceedings are almost akin and similar and therefore, for the sake of brevity and convenience, the Court after clubbing both the proceedings, is proposing to proceed and decide by the common judgment. [2] In the application under section 482 Cr.P.C filed on 24.02.2023, the applicant is Dr. Ifraq @ Mohammad Ifraq Husain who has made Smt. Shazia Parveen his wife, Km. Aleena and her sister Km. Adeeba through her legal guardian Smt. Shazia Parveen as opposite party nos.2, 3 and 4 respectively with the following prayer :- “Application under section 482 Cr.P.C. and quash the order dated 20.01.2023 passed by learned IIIrd Additional Sessions Judge, Kasganj, in Criminal Appeal No.19 of 2022 (Dr. Ifraq Husan Vs. Smt. Shazia Parveen), Police station-Sector Ganjdundwara, District-Kasganj under section 125 Cr.P.C. It is further necessary and expedient in the interest of justice that this Hon’ble Court may graciously be pleased to order for a fresh DNA test of the applicant and the respondent no.3 and 4 during the pendency of the present Criminal Misc. Application Under Section 482 Cr.P.C. before this Hon’ble Court.” [3] On 20.02.2023, yet another Criminal Revision was filed invoking the power under section 397/401 Cr.P.C. by the same Dr. Ifraq @ Mohammad Ifraq Husain making aforesaid persons who are his wife and two daughters as respondent nos. 2 to 4 assailing the legality and validity of the orders dated 07.04.2022 passed by learned Gram Nyayalay, Patiali, Kasganj while deciding the case no.100 of 2019 under section 125 Cr.P.C. so preferred by Smt. Shazia Parveen against her husband Dr. Ifraq @ Mohammad Ifraq Husain claiming maintenance by the impugned order, learned Magistrate has awarded desired amount as maintenance to his wife and daughters and when the same was challenged in Criminal Appeal No.19 of 2022 (Dr. Ifraq @ Mohammad Ifraq Husain Vs. Ifraq @ Mohammad Ifraq Husain claiming maintenance by the impugned order, learned Magistrate has awarded desired amount as maintenance to his wife and daughters and when the same was challenged in Criminal Appeal No.19 of 2022 (Dr. Ifraq @ Mohammad Ifraq Husain Vs. Smt. Shazia Parveen), learned IIIrd, Additional Sessions Judge dismissed the criminal revision preferred by the revisionist Dr. Ifraq @ Mohammad Ifraq Husain vide impugned judgment and order dated 30.01.2023. The prayer sought is as follows :- “That in view of the aforesaid facts and circumstances, of the present case, it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to allow this Criminal Revision and set-aside the order dated 07.04.2022, passed by learned Gram Nyayalaya, Patiali, Kasganj in Case No.100 of 2019(Smt. Shazia Parveen and others Vs. Dr. Ifraq) under section 125 Cr.P.C. and also the order dated 30.1.2023 passed by III Additional Sessions Judge, Kasganj in Criminal Appeal No.19 of 2022 Police station- Dundwara, District-Kasganj. It is further necessary and expedient in the interest of justice that this Hon’ble Court may graciously be pleased to stay the effect and operation of order dated 07.04.2022 passed by learned Gram Nyayalaya, Patiali, Kasganj in case no.100 of 2019 (Smt. Shazia Parveen and others Vs. Dr. Ifraq) under section 125 Cr.P.C. and also the order dated 30.1.2023 passed by III Additional Sessions Judge, Kasganj in Criminal Appeal No.19 of 2022 Police station-Dundwara, District-Kasganj during the pendency of the present Criminal Revision before this Hon’ble Court.” [4] Before dissecting the facts and grounds of the case, it is essential and imperative to introduce the parties and the background of the case so as to understand the controversy involved and its better appreciation. The applicant Dr. Ifraq @ Mohammad Ifraq Husain is the husband of Smt. Shazia Parveen (opposite party no.2) and father of opposite party nos.3 and 4 who are the minor daughters of the aforesaid couple during subsistence of their marriage. The marriage of Dr. Ifraq @ Mohammad Ifraq Husain and Smt. Shazia Parveen was solemnized as per Muslim rites and customs on 12.11.2013. This married couple and their inter se relationship lasted up to the year 2017 and thereafter, she started residing with her parents on account of maltreatment received by her from her own husband and in-laws, as a result of scanty dowry. Ifraq @ Mohammad Ifraq Husain and Smt. Shazia Parveen was solemnized as per Muslim rites and customs on 12.11.2013. This married couple and their inter se relationship lasted up to the year 2017 and thereafter, she started residing with her parents on account of maltreatment received by her from her own husband and in-laws, as a result of scanty dowry. [5] On 09.07.2019, she insisted to be maintained by her husband and therefore, the proceeding under section 125 Cr.P.C. was initiated against her husband claiming maintenance for herself and for her two minor daughters. After institution of the proceedings, learned trial Judge on 04.12.2019, have passed an ex-parte judgment and order against her husband fixing certain amount of monthly maintenance. It is asserted by the husband that this ex parte order was passed behind his back and without having any knowledge. Left with no other option, an Application under section 126(2) Cr.P.C. was moved by the applicant, that as soon as he came to know about the proceedings, he moved a recall application and the said application was eventually allowed at the cost of Rs.5,000/- in favour of the private respondents. [6] While aforesaid proceeding was pending before Gram Nyayalaya, Patiali, Kasganj, father-Dr. Ifraq @ Mohammad Ifraq Husain surreptitiously and without any knowledge or consent has taken the samples of her daughter to ascertain the paternity of those minor girls and has obtained a DNA report from DNA Labs India Genetic Research and Development Centre, Hyderabad on 15.10.2018. This indeed was shocking that the applicant, taking advantage of his profession as a doctor, has managed to extract sample of two minor daughters aged about 5 years and 7 years respectively. The underline idea for this exercise was to anyhow avoid maintenance of two young girls, if it is found that applicant is not their father. The said report was filed by means of an Application No.43B dated 17.12.2021 and the learned Magistrate vide order dated 02.03.2022 have passed an order, directing that the said DNA Report from DNA Labs India Genetic Research and Development Centre, Hyderabad be kept on record and the objections were invited from the wife. The said report was filed by means of an Application No.43B dated 17.12.2021 and the learned Magistrate vide order dated 02.03.2022 have passed an order, directing that the said DNA Report from DNA Labs India Genetic Research and Development Centre, Hyderabad be kept on record and the objections were invited from the wife. [7] Despite of the fact that the sufficient material were placed before learned Gram Nyayalaya, Patiali, Kasganj, learned Magistrate on 07.04.2022 pleased to allow the amount of maintenance to all the three namely Smt. Shazia Parveen from the date of filing of application for Rs.4,000/-and from the date of order for Rs.10,000, Km. Aleena from the date of application for Rs.3,000/-and from the date of order for Rs.5,000/-, Km. Adeeba from the date of application for Rs.3,000/-and from the date of order for Rs.5,000/-. [8] Dissatisfied by the aforesaid judgment, Dr. Ifraq @ Mohammad Ifraq Husain has preferred Criminal Appeal No.19 of 2022 before the Sessions Judge Court No.3, Kasganj against judgment and order dated 07.04.2022 and also an application 21B moved under section 391 Cr.P.C. during the pendency of the same seeking a DNA analysis of his minor daughters, opposite party nos.3 and 4. [9] The said appeal was rejected by the learned Sessions Judge by a well reasoned order on 30.01.2023 and the prayer for collecting the additional evidence in the shape of ordering the DNA profiling of her daughters. [10] The aforesaid are the bare skeleton undisputed facts and thus, the Court is proposing to decide by the common judgment after clubbing both the proceedings. [11] As it is evident from the name, the applicant/revisionist-Dr. Ifraq @ Mohammad Ifraq Husain is a medical practitioner. From the pleadings, it has come out that the applicant Dr. Ifraq @ Mohammad Ifraq Husain got married with opposite party no.2 on 12.11.2013. It is alleged that after the marriage, she was subjected to dowry related harassment and there was demand of Rs.5 lacs and motorcycle from the opposite party no.2 or her family members and on this score, she was constant target of humiliation, innuendos and sometimes, she was subjected to physical assault upon her by her husband and in-laws. Even though, she has given birth to two baby daughters on the different occasions. Even though, she has given birth to two baby daughters on the different occasions. Giving birth to two daughters have escalated the miseries upon her, as such eventually in the year 2017, she was driven out/left from her marital place. [12] As mentioned above, she has initiated the proceeding under section 125 Cr.P.C on 14.12.2019 and the same was ex-parte allowed in favour of opposite party no.2. However, the said order was recalled in exercise of power under section 126(2) Cr.P.C. imposing cost of Rs.5,000/-. [13] On 18.01.2021, husband has filed detailed objection stating therein that the opposite party no.2 has left the marital home because the applicant was unable to fulfil her exorbitant demands and her demand for separate living. It is alleged that the applicant has divorced her as she was involved in extra-marital relationship with a boy Saleem. Not only this, applicant-Dr. Ifraq @ Mohammad Ifraq Husain is not a biological father of one of the girl relying upon the so-called DNA report dated 15.10.2018. [14] After getting convinced, the applicant-Dr. Ifraq @ Mohammad Ifraq Husain using his medical skills, in a clandestine fashion, has taken out the sample from his minor daughter Km. Aleena claiming that he is not his biological father and sent the said sample for the DNA profiling. The sample were sent to DNA LABS India Genetic Research and Development Centre, Hyderabad on 15.10.2018 and the said result of the DNA profiling is as follows :- “The alleged father is excluded as the biological father of the tested child. Based on testing results obtained from analysis of the DNA loci listed, the probability of Paternity is 0.” meaning thereby the applicant is not a biological father of the aforesaid girl. The applicant wanted to bring on record the DNA report and other co-related documents in the proceedings. Accordingly, the aforesaid application was taken on record. However, time was granted to opposite party no.2 to file its rebuttal by the next date fixed. [15] The said DNA report from Hyderabad Lab was filed by the applicant before the learned Magistrate and vide order dated 02.03.2022, the said report was taken on record by the order of the concerned Magistrate by the application no.43B. However, time was granted to opposite party no.2 to file its rebuttal by the next date fixed. [15] The said DNA report from Hyderabad Lab was filed by the applicant before the learned Magistrate and vide order dated 02.03.2022, the said report was taken on record by the order of the concerned Magistrate by the application no.43B. Thus, the entire tussle is to direct the opposite party no.2, 3 and 4 to give its samples by the order of the Court so that the paternity of the girl may be established. Section 391 of Cr.P.C. and its applicability The Court has an occasion to peruse the provisions of Section 391 of Cr.P.C. which reads thus :- “391. Appellate Court may take further evidence or direct it to be taken. — (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.” [16] On a plain reading of the aforesaid provision, it empowers the Appellate Court to take further evidence or direct it to be taken. The catch expression of this provision is “…..the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and ……..” . While elaborating the aforesaid expression, it is evident that it is the complete and undiluted judicial discretion of the Appellate Court that such additional evidence is necessary. It is not, either of the contesting parties may pre-empt or suggest that the additional evidence is required in this case. While elaborating the aforesaid expression, it is evident that it is the complete and undiluted judicial discretion of the Appellate Court that such additional evidence is necessary. It is not, either of the contesting parties may pre-empt or suggest that the additional evidence is required in this case. As it is evident from the expression itself that in the event, the Appellate Court so feels or decides to have additional evidence, he shall record its reason for doing so and then only ask for the additional evidence. In the judgment of Rambhau and another Vs. State of Maharashtra, reported in 2001 4 SCC 759 , it is said that there is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 Cr.P.C. But this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. However, it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. Section 391 Cr.P.C. was introduced in the statute-Book for the purpose of making it available to the Court, not to fill up any gap in the prosecution case but to oversee that the concept of justice does not suffer.” Needless to mention here that it is exclusive domain of Appellate Court to have or not to have such additional evidence. None of the parties before him can compel the Appellate Court to give directions in this regard. [17] Any insistence by the appellant would be construed that he is stepping in the shoes of the Appellate Court or usurping the powers of the Appellate Court to give a direction to the Appellate Court so that a DNA profiling of two young daughters may be done as the applicant is under some unfounded impression ? that he is not their biological father. that he is not their biological father. The Appellate Court should not have exercised this power to clear off the perception of appellant exercising his powers under section 391 Cr.P.C. This is not a true import of Section 391 Cr.P.C. as it is evident from the aforesaid observation by the Hon’ble Apex Court in the case of Rambhau’s case (supra) and the learned Magistrate and learned Appellate Court has rightly rejected the application under section 391 Cr.P.C. As mentioned above, when the matter was pending before the Gram Nyayalaya, Patiali, Kasganj, the applicant using his profession, has managed to take out a blood samples of his own blood and blood of his daughter Aleena and sent it to DNA Labs India as it is evident from its report, that by the order of Dr.Ifraq, this DNA report entitling “Personal Piece of Mind Paternity Test” was conducted to establish as to whether the applicant is biological father of a girl or not and after holding the so-called test by the DNA Labs India, has given its report “The allged father is excluded as the biological father of the tested child. Based on testing results obtained from analysis of the DNA loci listed, the probability of Paternity is 0”. Since, the said report was conducted by the order of applicant-Dr. Ifraq @ Mohammad Ifraq Husain and not at the behest of any judicial order and therefore, no importance could be attached to the said application and that is the reason behind requesting the Appellate Court to exercise its power under section 391 Cr.P.C. to hold a DNA profiling of his daughter-Aleena. [18] Per contra, Sri Hari Om Rai, learned counsel for the respondent has drawn the attention of the Court to Section 112 of Evidence Act, which reads thus : 112. Birth during marriage, conclusive proof of legitimacy. “The fact that any person was born during the continuance of a valid marriage between his 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.” The aforesaid provision of Evidence Act is in two parts. (i) a person was born during the continuation of valid marriage between his mother and any man or within 280 days after its dissolution, and the mother is remained unmarried, then it shall be a conclusive proof that he is a legitimate son of that man ;(ii) Unless it can be shown that the parties to their marriage has no access to each other at any time when he could have been begotten. The Section is based on the principles that when a particular relationship such as marriage, is shown to exist, then its continuation must prima facie be presumed under the section of fact that any person was born :- (I) During the continuation of valid marriage between the mother and any man OR (ii) Within 280 days of its dissolution and the mother remain unmarried, shall be conclusive proof that he is legitimate son of that man unless the parties had no access to each other at any time when he could have begotten. The evidence that a child is born during wedlock is sufficient to establish its legitimacy and shift the burden of proof to the parties seeking to establish the contrary. The presumption under this Section is conclusive presumption of law which can be displaced only by the proof of non access between the parties to the marriage at a time when according to the ordinary course of nature, husband could have been the father of the child. This expression conclusive proof “is used in the section means proof as lay down under section 4 of the Indian Evidence Act. Access and non-access connote existence and non-existence of opportunities for marital intercourse. It is the principle of law that “Odiosa et inhonesta non sunt in lege prae sumenda" (Nothing odious or dishonourable will be presumed by the law). So the law presumes against vice and immorality. One of the strongest illustrations of the principle, is the presumption in favour of legitimacy of children in a civilized society. But, where illegitimacy seems as common as marriage and legitimacy, a presumption of legitimacy cannot be drawn and legitimacy or illegitimacy will have to be proved like any other fact in issue." The provision of Section 112 of Indian Evidence Act is based on principles. Peter est quem nuptiae demonstrant(father is one whom marriage indicates). But, where illegitimacy seems as common as marriage and legitimacy, a presumption of legitimacy cannot be drawn and legitimacy or illegitimacy will have to be proved like any other fact in issue." The provision of Section 112 of Indian Evidence Act is based on principles. Peter est quem nuptiae demonstrant(father is one whom marriage indicates). When child was born during valid marriage, it is a conclusive proof of its legitimacy unless strong and cogent evidence is led to prove otherwise. [19] By dissecting the aforesaid provision of Section 112 of Evidence Act, it reveals that : (a) During the continuation of a valid marriage between his mother and any man ; (b) Within 280 days after its dissolution, the mother remain unmarried ; (c) Unless it can be shown that the parties to the marriage had no access to each other [20] The presumption as to paternity in this section only arises in connection with the offspring of the married couple. The section applies to legitimacy of children of a married person only, On the birth of child during marriage, the presumption of legitimacy is conclusive no matter how soon the birth occurs after the marriage. The section does not lay down the maximum period of gestation and therefore, does not bar the proof of legitimacy of a child born more than 280 days after dissolution of marriage, the affect of section being nearly that no presumption in favour of legitimacy is raised and question must be decided simply upon the evidence for and against legitimacy. A person born within 280 days after the death of his father, is presumably legitimate son when a person claims under this section, to be a son of deceased person, he must prove that he was born within 280 days after the death of his father. Under this section, child born in a wedlock, should be treated as a child of the person who was, at the time of his birth, the husband of mother unless it is shown that he had no access to the mother at the time of its conception. Under this section, child born in a wedlock, should be treated as a child of the person who was, at the time of his birth, the husband of mother unless it is shown that he had no access to the mother at the time of its conception. Quite irrespective of the question whether the mother was married woman or not at the time of conception, where the wife was pregnant on the date of marriage and the husband had no access to the wife before the marriage, there was no question of calling aid the presumption under Section 112 of Evidence Act. By “having no access” is meant having no opportunity of sexual intercourse and in order to displace the conclusive presumption, it must be shown that no such opportunity occurred down to a point of time so near to the birth as to render paternity impossible. To rebut the legal presumption under this Section, it is for those, who dispute the paternity of a child, to prove non-access of the husband to his wife during the period when with respect to the date of its birth, it must, in ordinary course of nature, have been begotten. Mere fact that husband and wife were residing separately in the close proximity of the distances, is not a sufficient proof of non-access. [21] The Supreme Court observed that the presumption which under section 112 of Evidence Act contemplates, is conclusive presumption of law which can be displaced only by the proof that the particular fact mentioned in the Section, namely, non-access between the parties to the marriage at the time when according to ordinary course of nature, the husband could have been the father of the child. Non-access can be established not merely by positive or the direct evidence, it can be proved undoubtedly like any other fact by evidence, either direct or circumstantial which is relevant to the issue, though as presumption of legitimacy is highly favoured by the law, it is necessary that proof of non-access is clear and satisfactory. The non-access would include incapability of access on account of impotency, want of virility or masculinity because of immature age or other physical incompetency. Sri Manish Tiwary, learned counsel for the applicant while buttressing his contention, has relied upon the following citations in his favour :- (i) Nand Lal Wasudeo Badwaik Vs. The non-access would include incapability of access on account of impotency, want of virility or masculinity because of immature age or other physical incompetency. Sri Manish Tiwary, learned counsel for the applicant while buttressing his contention, has relied upon the following citations in his favour :- (i) Nand Lal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another reported in (2014) 2 SCC 576 ; (ii) Deepanwita Roy Vs. Ronobroto Roy reported in (2015) 1 SCC 365 ; (iii) Priyanka Janardhan Patil Vs. Janardhan Raghunath Patil reported in 2022 SCC Online SC 1047 ; [22] Let us examine the aforesaid cases one by one. In paragraph no.14, in Nand Lal Wasudeo Badwaik case, the Hon’ble Apex Court, in no uncertain terms, have clearly spelled out that a child born during the continuation of a valid marriage, shall be conclusive proof that a child is a legitimate child of a man to whom the lady giving birth as married. The provision makes legitimacy of a child to be a conclusive proof if the condition aforesaid are satisfied. It can be denied only if it is shown that the parties to the marriage had no access to each other at any time when the child could have begotten. Paragraph no.16, 17 and 18 of the aforesaid judgment deserves special by the Court, which is quoted hereinbelow : 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. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that Respondent 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 circumstances, which would give way to the other is a complex question posed before us. 17. 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 circumstances, 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. The 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, a 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. [23] Adopting the aforesaid ratio of the aforesaid case of Nand Lal Wasudeo Badwaik, the case of Deepanwita Roy’s(supra) was also decided. While deciding the case of Deepanwita Roy, the Court has adopted the reasoning in toto. The Court has occasion to peruse the facts of the aforesaid case in which Lata Nand Lal Badwaik has filed an application under section 125 Cr.P.C. claiming maintenance for herself and his daughter inter alia alleging that she started living with her husband from 20.06.1996 and stayed with him for about two years and during that period, she got pregnant from the applicant. She was sent for delivery at her parent’s place where she has given birth to a baby girl. However, this claim of the girl was resisted by her husband and also denied that the baby girl does not belong to him. According to her husband, he has got no physical relationship with his wife. The Court while allowing the maintenance at the rate of Rs.900/-to the wife and Rs.500/-to the daughter on 10.01.2011, passed an order and under the directions of the Court, the DNA test was carried out in which, it has come out that the appellant Nand Lal Badwaik is excluded to be the biological father of Neha Nand Lal Badwaik, baby girl. The Court has given direction to conduct her DNA test. However, it is evident that comparing the facts of the present case, is entirely different from the aforesaid case as there is no order by any of the learned court below to go for any DNA test as there is no pleading of non-access by the husband/applicant with her wife Ms. Shazia. [24] In the present case, as mentioned above, the prayer is to quash the order dated 20.01.2023 passed by IIIrd Additional Sessions Judge, Kasganj while deciding the Criminal Appeal No.19 of 2022 Dr. Ifraq @ Mohammad Ifraq Husain Vs. Smt. Shazia Parveen, Police Section-Sector Ganjdundwara, Kaganj, under section 125 Cr.P.C. and also order for fresh DNA test of the applicant, respondent nos.2 to 4 in the present case. The details of the present case has already been spelled out in the earlier part of the judgment which needs no repetition. However, it is clear that the marriage between the applicant and respondent no.2 was solemnized as per Muslim rites on 12.11.2013. On account of scanty dowry, she was subjected to cruel and inhuman treatment. Resultantly, she was compelled to leave the company of her husband in the year 2017. During the subsistence of the marriage, she gave birth to two baby girls namely Km. Aleena and Km. Adeeba. In paragraph no.12 of the petition, it has been mentioned that opposite party no.2 was leading adulterous life as counter allegation upon the chastity of his wife, and, therefore, in a most clandestine fashion without taking consent of opposite party no.2, Ms. Shazia Parveen or her daughter Km. Aleena and Km. Adeeba. In paragraph no.12 of the petition, it has been mentioned that opposite party no.2 was leading adulterous life as counter allegation upon the chastity of his wife, and, therefore, in a most clandestine fashion without taking consent of opposite party no.2, Ms. Shazia Parveen or her daughter Km. Aleena, taken the relevant sample and sent for DNA Labs India Genetic Research and Development Centre, Hydrabad to check his paternity, while taking the advantage of his profession, and obtained the certificate that the applicant is not a biological father of opposite party no.3, Km. Aleena. There is no order of the Court to conduct such test. The interesting feature of this case is that in the entire pleading of the case, there is not a whisper that the applicant has got no access to his wife during the subsistence of the marriage i.e. 12.11.2013 to 2017, the date of her desertion from the company of her husband. A bald allegation has been pasted upon his wife that she was leading adulterous life, is of no consequence. The requirement of the law is otherwise. It is the applicant, who has to establish that during the subsistence of marriage, he has got no access to his wife which has resulted to the birth of two baby girls. After she diserted the company of her husband, one fine morning, a brain wave attached the applicant and he has managed to take the samples in a surreptitious way without any information or consent and sent the aforesaid sample to the Centre. The report from the aforesaid DNA Centre is the base on which he wants to shun away from his responsibility of her father. As mentioned above, there is not a whisper in the entire pleadings that the applicant has got no access to his wife during this period. [25] In a celebrated judgment in the case of Gautam Kundu vs. State of West Bengal AIR 1993 2295, Hon’ble the Apex Court has boiles down following conditions :- (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 primafacie 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. Examined in the light of the above, we find no difficulty in upholding the impugned order of the High Court, confirming the order of the Addl. Chief Judicial Magistrate, Alipore in rejecting the application for blood test. We find the purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test. Accordingly Criminal Appeal will stand dismissed. Cr, M.P.No. 2224/93 in S.L.P.(cr No. 2648/92 filed by Respondent No. 2 will stand allowed. She is permitted to withdraw the amount without furnishing any Security. [26] Weighing the facts of the present case, with the aforesaid guidelines, it goes without saying that the base of the entire case, the said DNA report obtained by the applicant is nothing but a trash and cannot be relied upon. The DNA test cannot be ordered as a matter of course. There must be strong prima facie case that husband must establish non-access with his wife in order to dispel the presumption under section 112 of the Evidence Act and the Court has to weigh on an iron balance, far reaching implications and consequence ordering the blood test/DNA test, whether it will affect of branding a child as a bastard and the mother as unchaste woman. No one can be compelled to give sample of the blood for analysis. On these parameters, the applicant has failed to establish or even plead in his pleadings that he has got no access to his wife during subsistence of marriage from 12.11.2013 to the year 2017. Mere making a baseless and bald allegation that his wife is an unchaste woman, leading adulterous life, would have no consequence and would be construed that this crude attempt on his part, is nothing more than to avoid payment of maintenance to the kids. [27] In the recent case of Aparna Ajinkya Firodia Vs. Mere making a baseless and bald allegation that his wife is an unchaste woman, leading adulterous life, would have no consequence and would be construed that this crude attempt on his part, is nothing more than to avoid payment of maintenance to the kids. [27] In the recent case of Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia reported in 2023 SCC Online SC 161, Hon’ble the Apex Court has examined this tricky legal question from the point of view of a young boy or girl and its adverse impact on the psyche of that boy, whose legitimacy is under challenge by none other than his own father. In this small world, where every information is one’s finger tip, the child has to quest to find out his real father. He also has to cope up with confused state of mind whether a person to whom he considers his father is shunning away and anyhow wants to get rid of this relationship. It is undeniable that the finding as to illegitimacy, if revealed in the DNA test, would at very least adversely effect the child’s tender mind. It can cause not only confusion in the mind of the child but quest to find out who the real father is and a mixed feeling towards to a person who may have nurtured the child but is not a biological father. Not knowing who is one’s father, would create a mental trauma in that child. One can imagine if after coming to know the identity of the biological father, what greater trauma and stress would impact on a young’ s mind proceeding which are in realm have a real impact on not only child but also on the relationship between the mother and the child itself, which is otherwise sublime. It has been said that the parent of a child may have illegitimate relationship but a child borne out of such relationship cannot carry a stamp of illegitimacy on his forehead. As such, a child has no role to play in its birth. An innocent child cannot be traumatized and subjected to extreme stress and tension in order to discover its paternity and that is why Section 112 of the Evidence Act speaks about the conclusive presumption regarding the paternity of the child subjected to rebuttal as provided in the second part of the aforesaid Section. An innocent child cannot be traumatized and subjected to extreme stress and tension in order to discover its paternity and that is why Section 112 of the Evidence Act speaks about the conclusive presumption regarding the paternity of the child subjected to rebuttal as provided in the second part of the aforesaid Section. A child should not be lost in its search of paternity. The precious childhood and youth cannot be lost in quest to know one’s paternity. Therefore, the wholesome object of Section 112 of Evidence Act which confers the legitimacy of the child born during the subsistence of valid marriage subjected to the same being rebutted by strong and cogent evidence and perceived. Children of today are citizens and the future of a nation. The confidence and happiness of a child who is showered with love and affection by both parents is totally distinct from that of a child who has no parents or has lost a parent and still worse, is that of a child whose paternity is in question without there being any cogent reason for the same. The plight of a child whose paternity and thus his legitimacy, is questioned would sink into a vortex of confusion which can be confounded if Courts are not cautious and responsible enough to exercise discretion in a most judicious and cautious manner. following paragraph are relevant for consideration of the present case which are as follows :- “Indian Law has proceeded on the assumption that parents are persons who beget a child or who assume the legal obligations of parenthood through formal adoption of child. Under the Indian legal spectrum, a husband is strongly presumed to be the father of a child born to his wife. Thus, there is a strong presumption regarding the paternity of a child. This presumption can be overcome only by evidence precluding any procreative role of the husband, such as by showing that the husband and wife had no access to each other at the relevant time of possible conception. In the absence of proof of non-access, the law considers the husband's paternity to be conclusively established if they cohabited when the child was likely to have been conceived. In the absence of proof of non-access, the law considers the husband's paternity to be conclusively established if they cohabited when the child was likely to have been conceived. By allowing rebuttal with proof, that the husband could not have been the biological father, the marital presumption was implicitly premised, in part, on a policy linking parenthood with biological reproduction and on an assumption about the probability of the husband's genetic contribution. The presumption protects social parentage over biological parentage. Scientific proof now makes it possible to know with virtual certainty whether a man is genetically related to a child. As a result, Courts are routinely confronted with husbands seeking to disavow their paternity based on newly acquired DNA evidence, notwithstanding them having long performed the social role of father to a child. The short question in the present appeal is as to how a Court can prevent the law’s tidy assumptions linking paternity with matrimony, from collapsing, particularly when parties are routinely attempting to dislodge such presumptions by employing modern genetic profiling techniques.” [27] Further, questions surrounding paternity have a significant impact on the identity of a child. Routinely ordering DNA tests, particularly in cases where the issue of paternity is merely incidental to the controversy at hand, could, in some cases even contribute to a child suffering an identity crisis. It is also necessary to take into account that some children, although born during the subsistence of a marriage and on the desire and consent of the married couple to beget a child, may have been conceived through processes involving sperm donation, such as intrauterine insemination (IUI), in-vitro fertilisation (IVF). In such cases, a DNA test of the child, could lead to misleading results. The results may also cause a child to develop a sense of mistrust towards the parents, and frustration owing to the inability to search for their biological fathers. Further, a child’s quest to locate its biological father may compete with the right to anonymity of the sperm donor. Having regard to such factors, a parent may, in the best interests of the child, choose not to subject a child to a DNA test. It is also, antithetical to the fundamentals of the right to privacy to require a person to disclose, in the course of proceedings in rem, the medical procedures resorted to in order to conceive. Having regard to such factors, a parent may, in the best interests of the child, choose not to subject a child to a DNA test. It is also, antithetical to the fundamentals of the right to privacy to require a person to disclose, in the course of proceedings in rem, the medical procedures resorted to in order to conceive. [28] Hon’ble Supreme Court while deciding the aforesaid judgment, has declined to grant any permission to carry out desired DNA test of the boy Master ‘X’ on the ground that the case of respondent-husband is that if the DNA test is allowed, and the same reveals that he is not a biological father of Master ‘X’ as a corollary, it would be proved that appellant’s wife committed adultery, we do not find favour with the approach suggested by the respondent husband to prove adultery on the following reasons:- i. It is not in dispute that Master “X”, the son stated to be born to the Appellant-wife from the wedlock, was born in the year 2013. DNA testing, cannot be used as a short cut to establish infidelity that might have occurred over a decade ago or subsequently after the birth of Master “X”. ii. In the circumstances of the present case, we are unable to accept that a DNA test would be the only way in which the truth of the matter can be established. The respondent-husband has categorically claimed that he is in possession of call recordings/transcripts and the daily diary of the appellant, which may be summoned in accordance with law to prove the infidelity of the appellant. Therefore, it seems to us that the respondent is in a position to attempt to make out a case based on such evidence, as to adultery/infidelity on the part of the appellant. iii. No plea has been raised by the respondent-husband herein as to non-access in order to dislodge the presumption under Section 112 of the Evidence Act. Therefore, no prima-facie case has been made out by the respondent which would justify a direction to conduct a DNA test of Master “X”. iv. No adverse inference can be raised in the instant case regarding the legitimacy or paternity of Master "X" vis-a-vis the appellant herein, on her declining to subject Master "X" to a paternity test. Therefore, no prima-facie case has been made out by the respondent which would justify a direction to conduct a DNA test of Master “X”. iv. No adverse inference can be raised in the instant case regarding the legitimacy or paternity of Master "X" vis-a-vis the appellant herein, on her declining to subject Master "X" to a paternity test. Further, on the appellant declining to subject Master "X" to a paternity test, no adverse inference can be drawn as regards the alleged adultery on the part of the appellant herein can be raised. In our view, the allegation of adultery has to be proved by the respondent herein de hors the issue of paternity of Master “X”. [29] Imbibing and accepting the aforesaid reasoning in toto, this Court is also of the view that kids who were born during the subsistence of marriage in between 2013-17 and the applicant, at no point of time, have ever pleaded in his pleadings that he has got no access to cohabitate with his wife, then in order to facilitate the applicant, if DNA test is being ordered, and God forbid if the result goes otherwise that would lead to disastrous results, not only putting a question mark upon the life of a mother and the child who has got no say in this incident. The inter se relationship between the husband and the children would seriously be jeopardized and would lead to a picture where nobody would be a gainer. More particularly when there is no pleading regarding any non-access by the applicant in the company of the applicant. In yet another judgment in the case of Ashok Kumar Vs. Raj Gupta and others reported in (2022) 1 SSC 20 while underlying the power and the duty of the Court to decide the case on such other evidence, adverse inference from the refusal to undergo DNA tests, held that in a circumstances where other evidences is available to prove or dispute the relationship, the Court should ordinarily refrain from ordering blood test like DNA test against the will of the party who is to be subjected to such test. It is burden upon the litigating party to prove his case adducing evidences in support of his plea and the Court cannot compel the party to prove his case in the manner suggested by the contesting parties subject to the drawing of adverse inference, if so warranted in the facts of the case. Whether the DNA test should be permitted on the child is to be analysed through the prism of the child and not through the prism of the parent. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open for the husband to prove by otherwise evidence, the adulterous conduct of his wife but the child’s right to identity should not be allowed to sacrifice. What comes out of the DNA test is the main product, is the paternity of the child which is subjected to a test. Incidently, the adulterous conduct of the wife also establishes as a by-product Though, the very same process. To say that the wife should allow the child to undergo the DNA test, to enable the husband to have a benefit of both product and the by-product or in alternative the wife should allow the husband to have a benefit of the byproduct by invoking Section 114 of the Evidence Act, if she denies not to subject child a DNA test, is really to leave the choice between the devil and the deep sea to the wife. [30] In this piquant situation, where the wife and his child’s dignity and honour is at stakes, the Court should doubly sure and should not pass an order in a routine way or rather exceptionally. Even otherwise, in such a circumstances, if the DNA test is being carried out in a normal routine way, it would open the pandora’s box for the unscrupulous husbands to challenge the paternity of their off springs. In fact, DNA test should be at the last resort. Its the liability of the husband to establish the fact that he has got no access to his wife or for any physical reason he is permanently incapacitated to cohabitate with his wife. In fact, DNA test should be at the last resort. Its the liability of the husband to establish the fact that he has got no access to his wife or for any physical reason he is permanently incapacitated to cohabitate with his wife. [31] The presumption of legitimacy of a child can only be displaced by strong preponderance of the evidence and not merely by balance of probabilities, but at the same time, the test of preponderance of probability is too light as that might expose many children to the peril of illegitimised. If a Court declares that husband is not a father of his wife’s child, without tracing out his real father, the fall out on the child is ruinous apart from all the ignominy visiting his mother. The bastardised child when grows up would be socially ostracised and can easily fall into wayward life. Hence, by way of abundance caution as a matter of public policy, law cannot afford to allow such consequences befalling an innocent child on the strength of mere tilting of probability. Its corollary is the burden of plaintiff husband should be higher than standard of preponderance of probabilities. The standard of proof in such case must at least be of a degree in between two as to ensure that there was no possibility of child conceived to plaintiff husband. Last but not the least Inayat Ali and ors. Vs State of Telangana in Criminal Appeal No.1569 of 2022 decided on 15.09.2022, it has been observed that merely because something is permissible under the law, cannot be directed as a matter of course to be performed particularly when a direction to that effect would be invasive to the physical anatomy of a person. Consequence thereof would not be confined to the question as to whether such an order would result in a testimonial compulsion but it encompass the right of privacy as well. Such direction would violate the privacy right of the person subjected to such test and could be prejudicial to the future of two children who were also sought to be brought within the ambit of trial Court’s direction. Therefore, judgment and order of High Court was set-aside by the Hon’ble Apex Court. Such direction would violate the privacy right of the person subjected to such test and could be prejudicial to the future of two children who were also sought to be brought within the ambit of trial Court’s direction. Therefore, judgment and order of High Court was set-aside by the Hon’ble Apex Court. [32] In the light of above discussion, where there is serious differences and disputes between the appellant and opposite party no.2 and they have decided to part with their relationship in the 2017 then, as mentioned above, in order to avoid the award of maintenance to the opposite party no.3 Ms. Aleena, this gimmickry in the shape of DNA Report, was conducted at the behest of the appellant who on his own in a clandestine fashion, taken out the samples and obtained a report from DNA Lab India, Hyderabad that he is not a biological father of the opposite party no.3. This test report as mentioned is simply a trash and cannot be relied upon nor any order for conducting a de novo DNA report could be ordered in the absence of any pleading regarding non-access of applicant with his wife-opposite party no.2 during last four years of subsistence of marriage. The Court would rather presume otherwise, unless the applicant must establish the fact either directly or by circumstances that his wife was unchaste woman, leading an adulterous life. Then, only if Court finds it necessary, may in exceptional circumstances, direct the DNA test. Making a bald and whimsical allegation upon the chastity of his wife, is not only derogatory but also an attempt to avoid to pay the maintenance amount. Therefore, the Court is declined to grant any relief to the applicant-Dr. Ifraq @ Mohammad Ifraq Husain to quash the order dated 20.01.2023 passed by IIIrd Additional Sessions Judge, Kasganj in Criminal Appeal No.19 of 2022 under section 125 Cr.P.C. or grant any fresh direction to hold a fresh DNA test of the applicant and respondent nos.3 and 4 for the reasons mentioned above. In addition to this, the prayer sought in the Criminal Revision 1090 of 2023 to set-aside the order dated 07.04.2022 passed by learned Gram Nyayalaya, Patiali, Kasganj in Case No.100 of 2019 Ms. Shazia Parveen Vs. Dr. Ifraq @ Mohammad Ifraq Husain and also the order dated 30.01.2023 passed by IIIrd Additional Sessions Judge, Kasganj cannot be granted for the reasons mentioned above. Shazia Parveen Vs. Dr. Ifraq @ Mohammad Ifraq Husain and also the order dated 30.01.2023 passed by IIIrd Additional Sessions Judge, Kasganj cannot be granted for the reasons mentioned above. Both the petitions is devoid of merit and accordingly dismissed by instant composite judgment. [33] It is further directed that applicant would clear off all the outstanding (if any) pursuant to above orders, within a period of one month from the production of certified copy of this judgment and the applicant shall keep on paying the amount, from the first fortnight of every month starting from 01.07.2024.