The Kerala High Court on Tuesday allowed a man’s plea for the DNA test of a child born during the sustenance of his marriage to establish his allegations of infidelity against his wife in the divorce proceedings brought by him.
The High Court answered in the affirmative the question before it: order a DNA test of a child in divorce proceedings in order to establish the husband’s claim of infidelity by the wife without the minor being a party to the case.
The court said such an instruction can only be issued if the person requesting the DNA test has established a solid prima facie case to back up their claims.
In the present case, the husband had claimed that he was married on May 5, 2006 and that the child was born on March 9, 2007, but as he was employed in military service, he left for Ladakh 22 days after the wedding.
He claimed that during those 22 days and thereafter, there had been no physical relationship between them due to his wife’s non-cooperation.
He also alleged that his wife was leading an adulterous life with her brother-in-law (her sister’s husband).
The man argued that since he suffered from infertility he had no possibility of having a child and, in support of his claim, he produced an infertility certificate stating that he suffered from oligoasthenoteratospermia – a condition that includes low sperm count, low sperm motility, and abnormal sperm morphology – the most common cause of male infertility.
“The doctor testified that there was no possibility for the applicant (husband) to have the child. The doctor further stated that before issuing the certificate, the applicant’s semen test had been carried out. This is a strong prima facie case to support the applicant’s case that he is not the child’s biological father, ”the High Court noted.
She also noted that when the Nedumangad Family Court issued an order for DNA testing at the husband’s request, when the wife requested maintenance of the child, she did not comply with instruction.
“This is yet another strong prima facie case,” the High Court said.
“For all these reasons, we are of the opinion that the petitioner has made a strong prima facie case for ordering a DNA test. DNA testing is the most authentic and scientifically proven way to establish paternity and therefore , to prove the case of infidelity and adultery set up by the applicant, ”added the High Court.
The court also ruled that in a petition filed by the husband asking for the dissolution of the marriage alleging adultery or infidelity on the part of the wife, by contesting the paternity of the child born during the duration of their marriage, the minor is not a necessary part.
“In such a request, the court may 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 group if a strong prima facie case is established,” did he declare.
With the observation, the high court overturned 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 on the grounds that the child was not a party to the proceedings and when it sought to make the minor a party, it also rejected this plea on the grounds that it was prescribed.
Allowing the husband’s appeal, the High Court ordered the DNA test to be performed at the Rajiv Gandhi Center for Biotechnology in Thiruvananthapuram.
(Except for the title, this story was not edited by DAILYNEWSCATCH staff and is posted from a syndicated feed.)