Child is necessary party to the application by father seeking DNA test

Nizar vs Raseena

Kerala HC, Ernakulan Bench

08/11/2018

OP (FC).No. 400 of 2017

About/from the judgment:

“The court cannot direct DNA or any such test without hearing the person affected irrespective of the fact whether he is a minor or major. If such person is a minor, he should be heard through the guardian.”

 

The Kerala High Court has held that a DNA test cannot be ordered without hearing the person affected, irrespective of the fact whether he is a minor or major.

 

A man had approached the family court seeking a declaration that the child born to his wife, whom he divorced, is not his daughter. However, taking note of the absence of such pleadings denying paternity of the child, in previous proceedings between the couple, the Family Court held that it amounts to an admission by him that he is the father of the child, and no DNA test can be ordered.

 

The high court, however, observed that he is entitled to prove by adopting scientific methods that he is not the father of the child. The court, quoting an apex court judgment, observed that when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

 

Taking note that child is not a party to the proceedings before the Family Court, the bench observed: “Before seeking a direction to conduct DNA test to prove the paternity of the child, the petitioner has to implead the child as a party to the proceedings before the lower court. The child is also a necessary party to the application filed by the petitioner seeking conducting of DNA test.”

 

Referring to a recent judgment by the high court, the bench further said: “The child has a right to be heard through its guardian before the court takes a decision whether it should direct to conduct the test. The court cannot direct DNA or any such test without hearing the person affected irrespective of the fact whether he is a minor or major. If such person is a minor, he should be heard through the guardian. The fact that the respondent, being the mother of the child, was heard by the court below on the application filed by the petitioner for conducting DNA test, is not sufficient. The respondent was heard in the matter not in the capacity of the guardian of the minor, but in her individual capacity only.”

Read the Judgment

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