Can A Child's DNA Test Be Ordered In A Case Of Paternity Dispute? Kerala High Court To Examine

The High Court of Kerala has decided to examine the legal issue whether an order can be passed to conduct the DNA test of a child in a case of paternity dispute.

The Court will examine if passing such a direction will infringe a child's right to privacy, which has been declared as a fundamental right under Article 21 by the Supreme Court in the KS Puttaswamy case. The impact of Section 112 of the Indian Evidence Act 1872, which creates a conclusive presumption of legitimacy of a child born during the subsistence of a valid marriage, also arises in the case.

A division bench comprising Justices A Muhamed Mustaque and Sophy Thomas has appointed Advocate Ashok M Kini as an amicus curiae for assistance in this issue.

The bench was considering a petition filed against an interim order passed by a Family Court which rejected a man's application for DNA examination of the child. The man had filed an original petition before the Family Court seeking a declaration that he was not the biological father of the child born in the marriage with his wife. The man alleged that his wife had an illicit affair with another person and disputed the paternity of his son. The Family Court dismissed the application observing that no ground was made out for ordering DNA test.

"...DNA test cannot be ordered as a routine course. The rights of the child has to be protected. The petitioner has no case that he had no physical access to his wife when the child was begotten.....The law leans against the bastardization of a child. A DNA test cannot be ordered merely because the petitioner felt some suspicion", the Family Court had observed in the order.