19 Sep 2023 2:59 PM GMT
The Kerala High Court, upholding an order passed by the Family Court, stated that DNA test cannot be conducted merely because the parties have a dispute or suspicion regarding paternity.Justice A. Badharudeen observed that DNA test or other scientific tests can only be resorted to when there was a specific denial of paternity of the child. “It has to be held further that when DNA test cannot...
The Kerala High Court, upholding an order passed by the Family Court, stated that DNA test cannot be conducted merely because the parties have a dispute or suspicion regarding paternity.
Justice A. Badharudeen observed that DNA test or other scientific tests can only be resorted to when there was a specific denial of paternity of the child.
“It has to be held further that when DNA test cannot be resorted to clear a suspicion regarding the paternity of the child, in the absence of specific denial of paternity of the child. In view of the above legal position, the dismissal of the application put in by the petitioner to conduct DNA test with a view to clear his suspicion/doubt regarding the paternity of the child, can only be justified.”
The petitioner and respondent got married in 2004 and they have a child born in the year 2006 whose paternity was disputed before the Family Court. The petitioner alleged suspicion regarding paternity of the child as they were not living together due to the mental illness of the respondent wife. The petitioner alleged that he had no occasion to have sexual intercourse with the wife as she was having mental problems. The Family Court dismissed the application filed by the petitioner for conducting paternity test which was challenged before the High Court.
Justice Badharudeen found that the Family Court dismissed the application of the petitioner relying upon Section 112 of the Evidence Act on the presumption of birth during the subsistence of marriage. The Court noted that the petitioner had no case that he did not have any access to his wife. The Court noted that the petitioner only had suspicion regarding the paternity of the child, and that he did not have a consistent case denying the paternity of the child.
The Court examined section 112 of Evidence Act and held that DNA test was conducted only to rebut the `conclusive proof of denial of paternity of the child. The Court relied upon the Apex Court decisions in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023) and Pattu Rajan v. State of Tamil Nadu (2019) to state that merely because there was a dispute between the parties regarding paternity, the Court need not provide permission to conduct DNA test or other scientific tests. The Court also noted that expert evidence was only advisory in nature.
The Court found that the parties have to produce other evidence to show denial of paternity of the child. It observed that DNA test or other scientific tests can be allowed by the Court only in rare and exceptional cases when the Court was satisfied that there was no other means to resolve the controversy between the parties regarding the paternity of the child.
“Thus, the law emerges is that merely because parties have dispute about paternity, it does not mean that the court should direct DNA or such other test to resolve the controversy. In such circumstances, the parties should be directed to lead evidence to prove the dispute of factum of paternity and only when the court finds it impossible to draw an inference based on such an evidence or the controversy in issue cannot be resolved without DNA test, it may direct the DNA test and not otherwise.”
On the above findings, the Court dismissed the original petition filed by the petitioner seeking permission for conducting DNA test of the child.
The Petitioner was represented by Advocate I.S. Laila
Citation: 2023 LiveLaw (Ker) 494
Case title: Sujith Kumar S V Vinaya V S
Case number: OP(CRL.) NO. 631 Of 2023
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