Prima Facie Evidence Of Long Cohabitation: Kerala High Court Says Refusing Alleged Father's DNA Test May Brand Child As 'Bastard', Mother 'Immoral'

The Kerala High Court recently held that where there is prima facie evidence indicating long cohabitation between a man and a woman, a plea seeking direction to the man to subject himself to DNA Test for determining their alleged child's paternity cannot be brushed aside. 

"If an order of the nature is declined that would have the impact of bastardizing the minor girl child among the public. Undoubtedly that would caste a social stigma upon the child as well as the mother respectively as ‘bastard’ and ‘immoral’," the Single Judge Bench of  Justice Mary Joseph observed.  

Factual Background

As per the woman, 1st petitioner before the Family Court, she and the respondent therein lived together as husband and wife and it was during this time that she conceived the 2nd petitioner, and gave birth to her. She claimed that respondent married another lady during this time but promised to look after her and the child. However, after some time, the payments stopped, constraining her to take legal recourse.

It is the case of the 1st petitioner that due to her long cohabitation with the respondent, she gained the status as the respondent's wife and the marriage solemnized thereafter by the respondent was void ab initio. 

The Family Court found that the 1st petitioner evidently succeeded in bringing home a prima facie case of long cohabitation between herself and the respondent. It thus found the case as one fit for issuance of a direction for conduct of DNA test. It is challenging the same that the present plea was filed by the respondent. 

Arguments Raised 

Advocates Thomas M. Jacob and H.P. Shaboo argued on behalf of the respondent that he is a married man living with his legally wedded wife and the child born in that wedlock and that the direction issued by the impugned order to subject himself for a blood test for DNA analysis, if maintained would cause wild repercussions on the family as well as the social life of the respondent and intrude into his privacy, which is constitutionally safeguarded.

On behalf of the petitioner, it was argued by Advocate Pradeesh Chacko that the impugned order was passed by the court below after appreciating the factual scenario in detail and that it was liable to be confirmed. The Counsel relied upon precedents to emphasize that Courts ought to carefully examine whether the order if refrained would have the impact of branding the child whose paternity is disputed, as a bastard and the mother as an unchaste woman.

Findings of the Court

The Court was of the opinion that a prima facie case justifying the averments of the 1st petitioner about long cohabitation with the respondent and birth of the 2nd petitioner in the said cohabitation had been evidenced by photographs produced on record. 

"When a prima facie case of cohabitation is made out by the 1st petitioner from the materials produced and relied on and the respondent stands thoroughly failed to establish a prima facie case of alleged immoral life led by the 1st petitioner with other persons named in his objection, the prayer of the 1st petitioner to issue direction to the respondent to subject himself to the blood test for determination of DNA cannot be thrown aside," the Court declared. 

The Court noted that if the respondent was not in cohabitation with the 1st petitioner and the 2nd petitioner was not born to him in the cohabitation as contended by him, he need not have to pay any money to them as maintenance allowance. 

"True that an illegitimate child is also eligible for maintenance allowance but, for that paternity is a very relevant aspect to be established so as to enable the court to direct payment from the respondent who was alleged as his father," it added. 

The Court thus held that the Court below had rightly issued a direction for conduct of the blood test of the respondent for DNA analysis. 

The petition was thus dismissed. 

Case Title: XXX v. YYY & Anr.

Citation: 2023 LiveLaw (Ker) 316 

Click Here To Read/Download The Judgment