DNA Test | Proof Of Paternity Not Sufficient To Prove Marriage/ Domestic Relationship Between Parties Under DV Act: Kerala High Court

The Kerala High Court recently held that conducting DNA test and proving child's paternity would not be enough to prove the existence of a marriage or domestic relationship in a proceeding under Domestic Violence Act, 2005, when paternity or legitimacy in itself was not a fact in issue.

Justice Kauser Edappagath while holding so, observed that under the DV Act, what is required to be proved in order to maintain an application is that of the petitioner being an aggrieved person, and there being a domestic relationship between the parties. 

"Even if the DNA test is conducted and paternity is proved, that would not help the petitioner to prove the so-called marriage or domestic relationship. No doubt, in appropriate case, the court can order DNA test. However, it is settled that, strong prima facie case is to be made out to compel a person to undergo DNA test and the DNA test must be relevant to decide the fact in issue in a particular case", it was observed. 

The court added that since, in the instant case, the paternity or legitimacy of the son was not at all a fact in issue in the proceedings initiated by the petitioner against the respondent, the factum of domestic relationship had to be be proved through other evidence.

The Court stated that it was up to the petitioner to substantiate her allegation that she was the legally wedded wife of the respondent and they have resided together as husband and wife in the shared household and the respondent cannot be compelled to undergo DNA test.

The 61 year old petitioner in this case had filed a case against the 67 year old respondent under Section 12 of the D.V. Act, claiming various reliefs. According to the petitioner, she had married the respondent in 1981 after being deserted by her first husband in 1980. Thereafter, she averred that a son was born to her and the respondent in wedlock, who is now 35 years of age. However, the respondent disputed the paternity of the son.

In the counter affidavit filed by the respondent, he further disputed the marriage as well as any sort of domestic relationship between himself and the petitioner, and on this ground, argued that the petitioner is not an aggrieved person as defined under Section 2(d) of the D.V. Act and hence the petition filed under the D.V. Act is not maintainable.

The petitioner had approached the High Court after her application for conducting DNA test of the said son of the petitioner was dismissed by the court below.

The counsels for the petitioner, Advocates Sarath M.S. and B. Premnath submitted that conducting the DNA test was absolutely necessary to prove the case of the petitioner, and the court below ought to have had regard to the same. 

On the other hand, it was contended by the counsels for the respondent, Advocates Santhosh Mathew, Arun Thomas, Anil Sebastian Pulickel, Veena Raveendran, Karthika Maria, Sanita Sabu Varghese, Nanda Sanal, Kurian Antony Mathew, and Manasa Benny George, that the paternity or legitimacy of the son was not an issue to be decided in the DV proceedings.

While perusing the petition filed by the petitioner before the JFCM Court, Chittur, the High Court found that the reliefs sought for were for protection order and monetary relief, and absolutely no reliefs had been claimed in respect of the son.

It was further noted by the Court that although the petitioner had submitted that her son was prepared to undergo the DNA test, no such willingness was forthcoming from the respondent. The Court observed, "without sufficient reason, no court can compel the respondent to undergo DNA test".

The Court also took note of the submissions made by the counsel for the respondents that in an earlier round of litigation between the petitioner, the respondent and the son of the petitioner, the son had admitted to the respondent not being his father, and a joint compromise petition had been filed to that effect. 

It was in this light that the Court dismissed the instant petition, and held that the court below had been justified in dismissing the prayer to conduct the DNA test.

Case Title: Madeswari v. K. Manickam 

Citation: 2022 LiveLaw (Ker) 451

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