Kerala HC permits the person to plead for a DNA check of the kid to show the lady’s infidelity: The Tribune India

Kochi, September 14th

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.

The Supreme Court answered in the affirmative when asked whether a child’s DNA test should be ordered in divorce proceedings to determine whether the wife had been infidelity without the minor being involved in the case.

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.

In the present case, the husband claimed that he married on May 5, 2006 and the child was born on March 9, 2007, but since he was employed in the military he 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 had also alleged that his wife led an adulterous life with her brother-in-law (her sister’s husband).

The man alleged that he was unable to have a child because of his infertility, and in support of his claim, he presented an infertility certificate stating that he had oligoasthenoteratospermia – a condition that involves low sperm count and poor motility of sperm and abnormal sperm morphology – the leading cause of male infertility.

“The doctor has shown that there is no way for the petitioner (husband) to have the child. The doctor further explained that the petitioner’s seed test had been carried out before the certificate was issued.

This is a compelling fact that underpins the petitioner’s case that he is not the birth father of the child, ”stated the Supreme Court.

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 is another strong prima facie circumstance,” said the Supreme Court.

“For all these reasons, we believe that the petitioner has argued prima facie convincingly in favor of ordering a DNA test. DNA testing is the most authentic and scientifically proven means of establishing paternity and thus proving the case of infidelity and adultery brought up by the petitioner, ”added the Supreme Court.

The court also found that in an application for dissolution of the marriage filed 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 on the part of the wife without the child in the party line-up if there is strong prima facie evidence,” it said.

With the finding, the higher court overturned the order of the lower court to reject the husband’s application for a DNA test of the child.

The lower court had not granted his request because the child was not a party to the proceedings, and when he wanted to make the minor a party, it also rejected this plea on the grounds that it was statute-barred.

The Supreme Court upheld the husband’s appeal and ordered the DNA test to be performed at the Rajiv Gandhi Center for Biotechnology in Thiruvananthapuram. —PTI

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