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Permission granted to have DNA test done by the Kerala High Court in the case of XXX v. XXX (OP (FC) No. 679 of 2019) through a bench of A.Muhamed Mustaque and Kauser Edappagath, JJ

FACTS OF THE CASE

In the present case, the respondent 1 had preferred to recover money via the Family Court but her husband had preferred to dissolve the marriage on the grounds of cruelty, abandonment, and adultery as well as for the recovery of money and gold ornaments. The petitioner’s major claim was that his wife had been having an affair with respondent 2, that is, respondent 1’s brother-in-law, and the child she gave birth to was actually respondent 2’s.

The petitioner had made the particular claim that he was infertile and unable to have children as evidence of his wife’s adultery and infidelity. The petitioner had requested a DNA test in an effort to establish his paternity, but the court below denied the request on the grounds that the kid was an essential party to the petition and that its validity and paternity could not be established in the absence of the child.

The petitioner had to depart for his place of employment in Ladakh after 22 days of marriage since he was working as a military service member, and throughout those 22 days or any subsequent ones there was no physical interaction between them because respondent 1 refused to cooperate. There was no chance for the petitioner to become pregnant because of his infertility, which was his clear case.

JUDGMENT

The Supreme Court stated in the case of Dipanwita Roy v. Ronobroto Roy (2015) that DNA testing is the most legitimate and scientifically accurate approach, which the husband may utilise, to substantiate his statement of infidelity. This should also be viewed as the wife’s most genuine, legitimate, and correct method of disputing the respondent husband’s claims and proving that she had not been unfaithful, adulterous, or disloyal. If the appellant-wife is correct, it will be demonstrated that she is.

Similar to this, the Supreme Court held in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) that the outcome of a genuine DNA test is scientifically accurate, and when there is a conflict between a legally required conclusive proof and a proof based on scientific advancement that is widely acknowledged as being accurate, the latter must take precedence.

Based on Supreme Court rulings, the High Court expressed its opinion that if a strong prima facie case is made out, it would be acceptable for a court to order the holding of a DNA examination to ascertain the truthfulness of the claims comprising the grounds for divorce.

The Court outlined two criteria for assessing whether a specific party is required to participate in the proceedings or not. In relation to the subject matter of the proceedings in issue, there must be a right to some relief against that party, and the absence of that party should prevent the passing of an effective decree.

Therefore, the Court held that the presence of a child has no bearing whatsoever on the decision of the petition for dissolution of marriage on merit since the original petition was not one under S.7 (1) r/w Explanation (e) of the Family Courts Act for a declaration as to the legitimacy of any person but rather only a petition for dissolution of marriage u/s 13 of the Hindu Marriage Act. In response to the query, the Court said that the claim for dissolution of marriage on the basis of adultery or infidelity is solely ancillary to the child’s illegitimacy or paternity. It is not required for the child to be present to decide on the requested relief.

In light of the foregoing, the Court permitted the petitioner to undertake DNA tests on both the petitioner and the respondent’s son 1.

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JUDGEMENT REVIEWED BY NISHTHA GARHWAL

Click here to read the Judgement