‘When the children are major, surely they cannot be compelled to give blood sample in a civil proceeding where they were not parties.’
Dismissing the plea of a 77-year-old husband, the Kerala High Court has observed that DNA test cannot be used as a shortcut to establish infidelity that might have occurred decades ago.
The man had approached the family court seeking a divorce from his wife who had told him that three children born of their wedlock were not his biological children. In his divorce petition, the man had filed an application seeking to conduct DNA test, which was dismissed by the family court.
Justice KP Jyothindranath began his judgment with a quote by French Philosopher, Michel de Montaigne: “A good marriage would be between a blind wife and a deaf husband”.
A bench headed by Justice V Chitambaresh observed that the three major children were not a party to the original proceeding. “When the children are major, surely they cannot be compelled to give blood sample in a civil proceeding where they were not parties. The case projected by the petitioner seems to be that if DNA test proves the petitioner is not the biological father of the said three children, the corollary is that the wife committed infidelity and there is adultery,” the bench said.
The court also said this is not a case where the test is the only safe route to reach the truth. “In the case of the three major children, after the passage of a long time, the DNA test cannot be used as a shortcut to establish infidelity that might have occurred decades ago. Even an order to undergo DNA test itself may its own effect on the reputation of the children in the society and it is also to be considered that they are major children born during the existence of a valid marriage, who are not party to the original proceeding,” the bench added.
Observing that it will not be proper to order DNA test, the bench said: “The evidence of DNA test to rebut the conclusive presumption available under Section 112 of the Evidence Act, can be allowed only when there is compelling circumstances linked with 'access', which cannot be liberally used as cautioned by the Hon'ble Apex Court in Dipanwita Roy's case (supra), wherein it is stated that “there can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided.””