Sabina, J.@mdashPetitioner has filed this petition challenging the order dated 06.04.2012 (Annexure P-3), whereby application moved by the
petitioner under Order 26 Rule 4 of the Code of Civil Procedure, 1908 for permission to examine Dr. Reita Ghosh as a witness, was dismissed. I
have heard learned counsel for the parties and have gone through the record available on the file carefully.
2. In the present case, petitioner has sought decree of divorce by moving a petition u/s 13 of the Hindu Marriage Act, 1955 on the ground of
cruelty and adultery. However, the adulterer has not been impleaded as a respondent. During the pendency of the petition, petitioner moved an
application for permission to examine Dr. Reita Ghosh by issuing a commission to prove the Deoxyribonucleic Acid (in short ''DNA'') report.
3. Sections 4 and Section 112 of the Indian Evidence Act, 1872 (in short ''Act'') read as under:-
Section 4:- May Presume:- ""Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved,
unless and until it is disproved, or may call for proof of it:
Shall Presume:- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is
disproved:
Conclusive proof:- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the
other as proved, and shall not allow evidence to be given for the purpose of disproving it.
Section 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.
4. Thus, as per Section 112 of the Act, a child born within the continuance of a valid marriage, shall be treated as a conclusive proof of the
legitimacy of the said child. Petitioner, by examining the doctor as a witness wants to establish DNA report to the effect that he was not the father
of the child born to the respondent. However, in view of Sections 4 and 112 of the Act, the learned trial court had rightly dismissed the application
moved by the petitioner especially when the adulterer has not been impleaded as a respondent. Hence, no ground for interference is made out.
Dismissed.