The Kerala High Court on Tuesday allowed a man's plea for the DNA test of a child born during the subsistence of his marriage to establish his allegations of infidelity against his wife in the divorce proceedings initiated by him.
The high court answered in the affirmative the question before it -- whether a direction be given for DNA test of a child in divorce proceedings to establish the husband's claim of infidelity by the wife without the minor being a party in the case.
The court said that such a direction can be issued only if the person seeking the DNA test has made out a strong prima facie to support his claims.
In the instant case, the husband had claimed that he was married on May 5, 2006 and the child was born on March 9, 2007, but as he was employed in military service, he had left for Ladakh 22 days after the wedding.
He claimed that during those 22 days and thereafter, there was no physical relationship between them due to the non-cooperation of his wife.
He had also alleged that his wife was living an adulterous life with her brother-in-law (her sister's husband).
The man submitted that since he was suffering from infertility, there was no possibility for him to have a child and in support of his claim he had produced an infertility certificate, which said that he suffered from oligoasthenoteratospermia -- a condition that includes low sperm number, low sperm motility and abnormal sperm morphology - the commonest cause of male infertility.
"The doctor gave evidence that there is no possibility for the petitioner (husband) to have the child. The doctor further deposed that before issuing the certificate, the semen test of the petitioner was conducted. This is a strong prima facie circumstance in support of the case of the petitioner that he is not the biological father of the child," the high court noted.
It also noted that when the Family Court at Nedumangad passed an order for the DNA test on the husband's request, during the wife's plea seeking maintenance for the child, she had failed to comply with the direction.
"This is yet another strong prima facie circumstance," the high court said.
"For all these reasons, we are of the view that the petitioner has made out a strong prima facie case to order a DNA test. DNA testing is the most authentic and scientifically proven means to establish paternity and thereby, prove the case of infidelity and adultery set up by the petitioner," the high court added.
The court also held that in a petition filed by the husband seeking dissolution of marriage alleging adultery or infidelity on the part of the wife, by disputing the paternity of the child born during the subsistence of their marriage, the minor is not a necessary party.
"In such a petition, the court can order a DNA test to establish the husband's assertion of infidelity and adultery on the part of the wife without the child in the party array if a strong prima facie case is made out," it said.
With the observation, the high court set aside the lower court's order dismissing the husband's plea for a DNA test of the child.
The lower court had not granted his request for the reason that the child was not a party to the proceedings and when he sought to make the minor a party, it declined that plea as well on the ground that it was barred by time.
Allowing the husband's appeal, the high court directed that the DNA test be conducted at the Rajiv Gandhi Centre for Biotechnology at Thiruvananthapuram.
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