Kerala Excessive Court docket permits a person to enchantment for a DNA take a look at on the kid to find out the girl’s infidelity
The Kerala Supreme Court on Tuesday upheld a man’s plea for DNA testing of a child born into his marriage to prove his allegations of infidelity against his wife in the divorce proceedings he initiated.
A. Muhamed Mustaque and Judge Kauser Edappagath considered whether an instruction could be given for a DNA test on a child in divorce proceedings to determine the husband’s right to infidelity by the wife without the minor being a party.
The court said that such an order can only be issued if the person requesting the DNA test has strong appearances to support their claims.
The petitioner’s husband had applied to the family court to dissolve the marriage due to cruelty, desertion and adultery and to reclaim money and gold jewelry.
The defendant wife had also turned to the family court to reclaim the money and jewelry. A joint procedure was therefore ordered on the matter.
The petitioner’s main allegation was that his wife had led an adulterous life with her sister’s husband and that the child they had born was their child.
In order to prove the infidelity of his wife, the petitioner wanted to carry out a DNA test on the son and himself.
However, the court of first instance rejected the application on the grounds that the child was a necessary party to the application and that without the child, paternity and legitimacy could not be established in the party rules.
Although the petitioner subsequently made affidavits, these were rejected by the court, citing late filing.
As a result, the petitioner turned to the High Court for a similar appeal.
The marriage in question was on May 5, 2006 and the child was born on March 9, 2007.
The petitioner alleged that the child emerged from an illicit relationship between his wife and her brother-in-law, even though the petitioner is named as the father on the child’s birth certificate.
However, he said he was in the military and left for Ladakh 22 days after the wedding.
He claimed that there was no physical relationship between them during those 22 days and after because his wife did not cooperate.
He also stated that he was infertile and unable to have a child.
To back up his claim, he presented an infertility certificate showing that he suffered from oligoasthenoteratospermia – a condition that includes low sperm count, low sperm motility, and abnormal sperm morphology – the leading cause of male infertility.
The request for a DNA test was made to prove that he was not the father of the child and to substantiate his allegations of infidelity and adultery accordingly.
He alleged that without the DNA test, it would be impossible for him to establish and confirm the allegations he made in his pleadings.
Prima facie this gave a strong impression to raise the presumption against legitimacy.
The petitioner was represented by lawyer Sindhu Santhalingam.
Attorney Brijesh Mohan stood up for the defendant, arguing that under Section 112 of the Indian Evidence Act, once the validity of a marriage is proven, there is a strong presumption and presumption only through strong presumption about the legitimacy of children born from that marriage and conclusive evidence refuted.
It was argued that evidence of adultery by the wife alone was not enough to rebut this presumption or to justify a finding of illegitimacy if the husband had had access.
The lawyer added that it is established that no one can be forced to give a blood sample for analysis.
They trusted in Goutam Kundu against the state of West Bengal & Anr [AIR 1993 SC 2295] where the Supreme Court ruled that, according to p.112, the resulting presumption can only be replaced by a strong preponderance of evidence and not by a mere weighing of probabilities.
It was also established that strong prima facie evidence must be present if the husband has proven non-access in order to dispel the presumption according to page 112.
Comments from the court
The Court found that, depending on the facts and circumstances of the case, it is permissible for a court to order a DNA test to determine the veracity of the allegations making up the cause of the divorce when there is strong prima facie evidence.
“The child’s DNA test result would undoubtedly be the best evidence to support that claim. The opinion of a DNA expert is relevant under Section 45 of the Evidence Act.”
Therefore, the board ruled that if the husband requests the dissolution of the marriage on charges of adultery or infidelity on the part of the wife who denies the paternity of the child born during the existence of their marriage, she can order a DNA test to confirm his claim to prove infidelity or adultery without expressly disrupting the presumption under consideration by u / s 112 regarding the legitimacy of the child, provided a convincing prima facie case is presented for such a course.
Taking into account the facts, the Court found that:
“The doctor has shown that there is no way for the petitioner (husband) to have the child. The doctor also confirmed that the petitioner’s seed test was carried out before the certificate was issued. “
This is a convincing fact that speaks prima facie in favor of the petitioner’s case that he is not the biological father of the child, the Court found.
It also found that when the Nedumangad Family Court ordered a DNA test at the husband’s request, the wife failed to do so while the wife was pleading for child support.
This turned out to be another strong prima facie circumstance.
“For all these reasons, we are of the opinion that the petitioner has made a credible claim to ordering a DNA test. DNA testing is the most authentic and scientifically proven means of establishing paternity and thus proving the case of infidelity committed by the petitioner, “added the court.
The Bank also noted that in a marriage dissolution application submitted by the husband on charges of adultery or infidelity by the wife by contesting the paternity of the child born during the existence of the marriage, the minor is not a necessary party.
“In such a request, the court may order a DNA test to prove the husband’s allegation of infidelity and adultery of the wife without the child in the party line-up if there is strong prima facie evidence,” it said.
With this finding, the court overturned the family court’s order to reject the husband’s request for a DNA test on the child.
The court upheld the husband’s appeal and ordered the DNA test to be performed at the Rajiv Gandhi Center for Biotechnology.
Click here to read the order