Nisha Maria Sebastian v. Gerard Gigi Michael

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 O.P.(FC) NO. 676 OF 2022** **AGAINST THE ORDER DATED 08.11.2022 IN I.A.NO.2 OF 2022 IN O.P.NO.175 OF 2022 ON THE FILES OF THE FAMILY COURT, PALA PETITIONER:** **NISHA MARIA SEBASTIAN, AGED 40 YEARS, D/O SEBASTIAN VILAKKUNNEL, VILAKUMEL HOUSE, PATHAMPUZHA P.O., POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN – 686582.** **BY ADVS. MANUEL KACHIRAMATTAM MERRY GEORGE** ## **RESPONDENT:** **GERARD GIGI MICHAEL, AGED 46 YEARS, S/O N.J. MICHAEL, NEDIYAPARAMBIL HOUSE, AVALOOKUNNU P.O., AMBALPUZHA TALUK, ALAPUZHA DISTRICT, PIN – 688006.** **BY ADVS. JOHN VARGHESE SONU AUGUSTINE** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 28.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.676 of 2022 ## **J U D G M E N T** ## P.G.Ajithkumar, J. The respondent in O.P.No.175 of 2022 on the files of the Family Court, Pala has filed this original petition under Article 227 of the Constitution of India. She seeks to set aside Ext.P8 order of the Family Court by which a Deoxyribonucleic acid (DNA) test of blood samples of the respondent and the child Yealia Gerard Mosze was ordered. 2. On 08.12.2022, notice on admission was directed to be served on the respondents. An interim stay of further proceedings in O.P.No.175 of 2022 for a period of one month was ordered on the same date. The interim order was extended from time to time. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. A DNA test may be required in a family dispute if paternity is in question. Report of DNA test is the opinion of an expert relevant under Section 45 of the Indian Evidence 3 O.P.(FC) No.676 of 2022 Act, 1872. Need to have evidence or opinion pertaining to a fact arises if that fact is required to be proved. Proof is needed when a fact is in dispute. An admitted fact need not be proved for, Section 58 of the Evidence Act dispenses with proof of an admitted fact. 5. The respondent has no dispute about the paternity of the child, Yealia Gerard Mosze, aged 6 years. He unequivocally admitted in Ext.P4, the petition in O.P.No. 175 of 2022 and Ext.P2 the proof affidavit filed by him in O.P.No.417 of 2020 before the Family Court, Pala that he is the father of the child and was born in his matrimonial relationship with the petitioner. The question is can, despite such admission, the respondent ask for a DNA test? 6. The specific contention of the respondent is that he and the petitioner are the wife and husband. Their marriage was solemnised on 28.02.2011. The child Yealia Gerard Mosze was born on 01.03.2017. Since their marital relationship was estranged, they filed O.P.No.417 of 2020 before the Family Court, Pala and obtained a decree of dissolution of their marriage on mutual consent on 25.03.2021. Subsequently, 4 O.P.(FC) No.676 of 2022 the respondent filed O.P.No.175 of 2022 alleging that he was being denied access and opportunity to interact with the child. He seeks a decree declaring him the legal guardian of the child and to get permanent custody of the child. In that original petition, the respondent filed I.A.No.2 of 2022 for an order to conduct a DNA test of the child to ascertain whether he is the biological father of the child for the reason that there are rumours that he is not the father. The Family Court allowed that petition. 7. The earned counsel appearing for the petitioner would submit that since there is no dispute regarding the paternity of the child, instead, the respondent categorically has admitted the paternity, a DNA test cannot be ordered. The learned counsel would submit that the reason why the respondent seeks to have a DNA test that there was a talk in the locality doubting the child's paternity is too flimsy a reason to order a DNA test. 8. The learned counsel appearing for the respondent on the other hand would submit that there is pleading denying the paternity of the child and non access in the affidavit filed 5 O.P.(FC) No.676 of 2022 by the respondent in support of I.A.No.2 of 2022 and in the light of that pleading DNA test became vital. The learned counsel would submit that there is an imminent necessity of conducting such a test since if he is not the father, there is no need for him to pursue O.P.No.175 of 2022 which was filed by him for getting custody of the child. The learned counsel in support of his contentions has placed reliance on the decisions reported in **Saji Mathew v. Bindu and another [2016 (2) KHC 907]; Ashok Kumar v. Raj Gupta and others[(2022) 1 SCC 20]; Nandlal Wasudeo Badwaik [(2014) 2 SCC 576]** and **Dipanwita Roy v. Ronobroto Roy [2014(4) KHC SN 14(SC)].** 9. In **Nandlal Wasudeo Badwaik** (supra), the application for conducting a DNA test was not opposed by the respondent and accordingly the Court has ordered the test. The test was conducted and the result was obtained. It was thereafter legality of the DNA test was challenged. In such a situation the Apex Court did not consider the legality of the order allowing DNA test. The Court accordingly proceeded to consider only the impact of the result of the DNA test. The 6 O.P.(FC) No.676 of 2022 principle laid down in the said decision has no direct application to this case. In **Ashok Kumar** (supra), the Apex Court held that when the plaintiff was unwilling to subject him to the DNA test, forcing him to undergo the test will impeach his personal liberty and his right to privacy. The Apex Court further held that the parties have adduced all possible evidence and the success or not of the plaintiff’s case depends upon the evidence he has adduced subject, of course, to the evidence adduced by the other side. The Court accordingly held that a DNA test was unnecessary in that case. 10. In **Dipanwita Roy** (supra), the Apex Court allowed to conduct DNA test in the peculiar facts and circumstances of that case. The specific allegation of the husband who filed a petition for divorce under Section 13 of the Hindu Marriage Act, 1955 was that the second son of his wife was begotten by the wife in her relationship with another, whose name was also stated. The Apex Court observed that for proving the allegation of the petitioner concerning infidelity of the respondent-wife DNA test result was very much required and accordingly the Apex Court allowed to have the test. There 7 O.P.(FC) No.676 of 2022 that opinion evidence was allowed since that was relevant and helpful to prove a disputed question of fact. In **Saji Mathew** (supra), this Court held that a DNA test could be allowed since there was enough evidence to show that the wife after leaving the matrimonial home had conceived the child and paternity was a disputed question. 11. Ext.P2 is the Proof Affidavit filed by the respondent before the Family Court, Pala in O.P.No.417 of 2020. It is categorically admitted in paragraph No.15 of it that the child is his son. Similar admission is there in paragraph No.2 of Ext.P4, the petition in O.P.No. 175 of 2022. The specific contention in it is that in the wedlock between the respondent and the petitioner, the child Yealia Gerard Mosze was born on 01.03.2017. When there is such admission, the respondent has filed I.A No. 2 of 2022 stating the reason that there have been rumours doubting paternity of his child. Thus, it appears that the intention behind requesting a DNA test is to silence such rumours. 12. The learned counsel appearing for the respondent would submit that the averments of the respondents denying 8 O.P.(FC) No.676 of 2022 paternity of the child in the affidavit was not specifically denied by the petitioner and therefore the same is an admission in the light of the provisions of Order VIII Rule 5 of the Code of Civil Procedure 1908. The learned counsel would submit that a DNA test is liable to be ordered in the light of his plea denying paternity. That contention is untenable for the reason that a statement in a subsequent affidavit by itself would not amount to withdrawal of the admission in the original petition which is the pleading in the case. 13. The Apex Court in **Aparna Ajinkya Firodia v. Ajinkya Arun Firodia [2023 (2) KLT 101(SC)]** held that a DNA test can be allowed only rarely and the purpose of calling for such a report is to resolve a point of issue. It is quite apposite to remind ourselves the caution sounded by the Apex Court in the above decision. It was observed: "A child should not be lost in its search for paternity. Precious childhood and youth cannot be lost in a quest to know about one’s paternity. Therefore, the wholesome object of Section 112 of the Evidence Act which confers legitimacy on children born during the subsistence of a valid marriage, subject to the same 9 O.P.(FC) No.676 of 2022 being rebutted by cogent and strong evidence, is to be preserved.” "Children of today are citizens and the future of a nation. The confidence and happiness of a child who is showered with love and affection by both parents is totally distinct from that of a child who has no parents or has lost a parent and still worse, is that of a child whose paternity is in question without there being any cogent reason for the same. The plight of a child whose paternity and thus his legitimacy, is questioned would sink into a vortex of confusion which can be confounded if Courts are not cautious and responsible enough to exercise discretion in a most judicious and cautious manner. Further, questions surrounding paternity have a significant impact on the identity of a child. Routinely ordering DNA tests, particularly in cases where the issue of paternity is merely incidental to the controversy at hand, could, in some cases even contribute to a child suffering an identity crisis." 14. Here the paternity of the child is an admitted fact and that is not a question in controversy. A report of DNA examination is quite unnecessary in such a case. The Family Court ought not to have allowed I.A.No.2 of 2022. Ext.P8 order therefore is liable to be set aside. Accordingly this original petition is allowed. Ext.P8 is set 10 O.P.(FC) No.676 of 2022 aside. I.A.No.2 of 2022 in O.P.No.175 of 2022 stands dismissed. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** PV/dkr 11 O.P.(FC) No.676 of 2022 ## **APPENDIX OF OP (FC) 676/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 THE TRUE COPY OF THE AGREEMENT DATED 3.9.2020, EXECUTED BY THE PETITIONER AND RESPONDENT.** - **EXHIBIT P2 THE TRUE COPY OF THE PROOF AFFIDAVIT, FILED BY THE RESPONDENT HEREIN IN O.P. NO. 417/2020 IN THE FILES OF FAMILY COURT PALA.** - **EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT IN O.P. NO. 417/2020 IN THE FILES OF FAMILY COURT PALA.** - **EXHIBIT P4 THE TRUE COPY OF THE PETITION IN O.P. NO.175/2022 IN THE FILES OF FAMILY COURT, PALA.** - **EXHIBIT P5 CERTIFIED COPY OF THE PETITION FILED IN I.A. NO. 2/2022 IN O.P. NO.175/2022 IN THE FILES OF FAMILY COURT, PALA.** - **EXHIBIT P6 TRUE COPY OF THE OBJECTION DATED 17.8.2022, FILED TO THE I.A. NO.2/2022 IN O.P. NO. 17512022 IN THE FILES OF FAMILY COURT, PALA** - **EXHIBIT P7 THE TRUE COPY OF THE OBJECTION DATED 8.11.2022 FILED TO THE I.A. NO. 2/2022 (IN THE OBJECTION BY MISTAKE IT STATED AS I.A. NO. 1/2022) IN O.P. (G&W) NO. 175/2022 IN THE FILES OF FAMILY COURT, PALA.** **EXHIBIT P8 THE CERTIFIED COPY OF THE ORDER DATED 8.11.2022 IN I.A. NO. 1/2022 IN O.P. NO. 175/2022 (RECORDED AT THE OVER LEAF OF THE CERTIFIED COPY THAT, ORDER IN I.A. NO. 2/2022 IN O.P. NO. 175/2022) IN THE FILES OF FAMILY COURT, PALA.**