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The Kerala High Court has said that before seeking direction to conduct a DNA test, the petitioner must make the affected person a party to the application filed to prove paternity

By NV Ravindranathan Nair in Thiruvananthapuram

The Kerala High Court has held that a DNA test cannot be ordered without hearing the person affected, irrespective of the fact whether he is a minor or major. Taking into account the angst of an affected child being forced to prove paternity through a DNA test, a bench comprising Justices CK Abdul Rahim and R Narayana Pisharadi was delivering its judgment on a petition filed by a man who had approached the Family Court in Alappuzha, Kerala, seeking a declaration that the child born to his ex-wife was not his daughter. The judges said that the court cannot order a DNA test without making the child a party to the case.

Nizar and Raseena, both from Alappuzha, became man and wife on November 1, 1999. Nine years later, Raseena gave birth to a girl. The plea of the petitioner, Nizar, in the original petition filed before the Family Court, was that he never had sexual relations with his wife and the child born to Raseena was not his daughter. He also alleged that she had once told him that he is not the father of her child. Nizar then divorced Raseena on March 26, 2010, by pronouncing the word “talaq” three times.

He then filed an application in the Family Court, praying that a DNA test be conducted to prove the paternity of the child born to Raseena. The estranged wife filed an objection to the application, denying the allegations raised by her former husband. She said she was ready to conduct a DNA test, but that willingness came with a rider—Nizar must file an undertaking before the court that he will pay an amount of Rs 25,00,000 as compensation if the result of the test goes against him. She also filed another application, to issue direction to the petitioner to undergo a potency test, to ascertain that he had no physical disability to perform sexual intercourse during the period that their marriage lasted, when according to him, there were no sexual relations between the two. But the Family Court dismissed both applications.

Meanwhile, Raseena moved the Chief Judicial Magistrate’s Court, Alappuzha, seeking various reliefs under Section 12 of the Protection of Women from Domestic Violence Act, 2005 including maintenance for herself and the child. The court ordered Nizar to pay maintenance to Raseena and the child at the rate of Rs 5,000 and Rs 2,000 per month, respectively.

The petitioner challenged this order in the Sessions Court, Alappuzha. In the memorandum of appeal filed in that case, the petitioner did not raise a plea that the child born to the respondent is not his daughter. Raseena had filed a petition against her former husband in the Family Court, seeking return of gold ornaments and other materials which she had brought along at the time of the marriage. During the cross examination, Nizar was specifically asked whether he had denied paternity of the child in the case which Raseena had filed in the Judicial Magistrate’s court under the Domestic Violence Act for seeking maintenance. Nizar replied in the negative and said he had not denied paternity of the child in that case. He told the court that he was concerned about the welfare of the little girl and that was the reason he expressed willingness to look after his former wife and her daughter. In response to another question, Nizar stated that he had no sexual relationship with the respondent for the ten years that they were officially husband and wife.

The Family Court was of the opinion that the absence of a plea by the petiti­oner, denying paternity of the child born to the respondent, amounts to an admi­s­sion by him that he is the father of the child. Therefore, it held that a DNA test is not needed for resolving the dispute.

But the High Court held that “an admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.”  The bench observed that an admission by a party, in a plaint signed and verified by him in an earlier suit, is an admission within the meaning of Section 17 of the Act and it may be held against him in other litigations. But such admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.

The bench observed that before seeking a direction to conduct a DNA test to prove the paternity of the child, the petitioner has to implead the child as a party to the proceedings before the lower court. The court said that even the child has a right to be heard through its guardian before it takes a decision, whether to allow a DNA test or not.  The court also noted that it had already heard the mother who is also the respondent but considered her submissions insufficient as she was heard as an individual and not as a guardian of the minor. “The court cannot direct DNA or any such test without hearing the person affected, irrespective of the fact whether he is a minor or major. If such person is a minor, he should be heard through the guardian.”

Referring to the plea to order a DNA test, the High Court, citing an apex court judgment, observed that 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. “When truth is known, there is no need or room for any presumption and a presumption cannot prevail over truth of a fact established by science,” the bench observed.

In the instant case, the child was born to the respondent on August 6, 2008, during the continuance of a valid marriage between her and the petitioner. The petitioner pleaded that during the relevant period when Raseena was pregnant, he was abroad.

The court said that Nizar was fully entitled to prove, by adopting scientific methods, that he is not the father of the child born to Raseena. But it disagreed with his attempts to make an open declaration about the illegitimacy of the child. “If a declaration as sought for is granted, the child alone will be the person affected by the declaration. Declaring illegitimacy of the child amounts to bastardising the child. Therefore, the child is a necessary party to the suit. Without the child on the party array, its paternity and legitimacy cannot be decided to grant the declaration,” the High Court said, while granting Nizar one month’s time to make the daughter a party to the case.

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