~By Shaheen Parween

The Kerala High Court has held that “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”.

Nizar was married to Raseena in the year 1999 and they had a girl child in 2008, thereafter Nizar gave ‘talaq’ to Raseena in the year 2010. He had approached the family court and in the original petition he alleged that he was not the father of the child born to them and that he had no cohabitation with his wife. Thereafter Nizar filed an application before the family court that a DNA test be conducted to ascertain the paternity of the child. However since he had not denied paternity of the child in his previous pleadings, the family court held that it amounted to an acceptance of paternity of the child and hence denied the conduct of DNA test.

The court said: “…Before seeking a direction to conduct 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 child is also a necessary party to the application filed by the petitioner seeking conducting of DNA test.

“As held in Radhakrishnan (supra), the child has a right to be heard through its guardian before the court takes a decision whether it should direct to conduct the test. 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. The fact that the respondent, being the mother of the child, was heard by the court below on the application filed by the petitioner for conducting DNA test, is not sufficient. The respondent was heard in the matter not in the capacity of the guardian of the minor, but in her individual capacity only.”

Further since the paternity of the child was the principle issue to be decided in the case, the court held that the petitioner could prove that he is not the father of the child by adopting scientific methods, however “before seeking a direction to conduct 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 Kerala High Court had earlier this year dismissed the petition of a 77 year old man to conduct a DNA test of his adult children to prove his wife’s adultery as a ground for divorce. The court dismissing the petition said that “a DNA test cannot be used as a shortcut to establish infidelity that might have occurred decades ago”. The court had also observed that that since the contesting parties were the husband and the wife and where the children were major and were not party to the proceedings then they cannot be compelled to give samples to conduct DNA test.

Read the judgment here.

—India Legal Bureau