A.M. Babu, J.

1. The appellant was the husband of the respondent. The respondent gave birth to a child during the continuance of her marriage with the appellant. The appellant denied the paternity of the child. Two petitions were filed before the family court by the appellant against the respondent. One was for divorce. The relief of divorce was decreed. Two relief’s were sought in the other petition. One, a declaration that the appellant is not the father of the child. Two, the appellant should be compensated to the tune of Rs 5,00,000/-by the respondent for her having lived in adultery. Both the relief’s were refused by the family court. Hence the appellant has come in appeal.

2. The child was in the womb when the petition was filed. The child was born pending the proceedings. The petition was amended to state that fact. But the child was not impleaded as a respondent. The parties to the proceedings agreed for a DNA test to ascertain the paternity of the child. The test was conducted. The test result favoured the appellant. The family court dismissed the petition holding that the appellant had access to the respondent when the child was begotten. The court relied on the presumption under Sec.112 of the Indian Evidence Act. The appellant wants the finding of the trial court set aside and a decree as sought for by him granted. He relies on the decision in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (AIR 2014 SC 932). The apex court holds that the DNA test result prevails over the conclusive proof under Sec.112 of the Evidence Act in deciding the paternity of a child. But the question which should be considered and decided ahead of the said question is whether the paternity of a child can be decided without the child on the array of parties.

3. We heard Sri. P.K. Muhammed and Sri. D. Ganesh Kumar, the learned counsel for the appellant and the respondent respectively. Advocate Sri. G. Unnikrishnan was appointed amicus curiae. We heard the learned amicus curiae also.

4. We summarise below the arguments of the learned counsel for the appellant. The child is an unnecessary party to the suit. Its presence in the suit does not have any bearing whatsoever in deciding the suit on merits. The illegitimacy of the child is only incidental to the claim for compensation against the respondent to prove her infidelity. The child's presence in the suit is not necessary to decide the relief of compensation claimed by the appellant. The child has no role in proving its legitimacy or disproving its illegitimacy. The child cannot adduce evidence to prove that its mother and the appellant had access to each other at the relevant time. The DNA test result cannot be reversed even if the child is a party to the suit. The verdict in the suit does not bind the child. The child if it wishes to establish its paternity and legitimacy may do so by separate suit after attaining majority. Dragging the child to the present litigation only causes mental agony to it. No objection was taken by the respondent in her written-statement that the suit was bad for non-joinder of any necessary party.

5. The learned amicus curiae has submitted that the child is a necessary party to a suit for declaration of its status as any such declaration granted would affect its legal rights and status. It was also argued by the learned amicus curiae that a judgment declaring the illegitimacy of the child without hearing it would be a nullity. The learned counsel for the respondent also argued in the same lines. The learned amicus curiae has referred to the provisions of Sec.10 of the Family Courts Act and Sec.99 and order I rules 3, 9, and 13 of the Code of Civil Procedure. According to the learned counsel for the respondent, Secs 34 and 35 of the Specific Relief Act shall also be read. The learned counsel for the parties and the learned amicus curiae have relied on reported judicial pronouncements in support of their arguments.

6. The learned amicus curiae submitted that going