Point of Law: Petition filed by the husband seeking dissolution of marriage alleging adultery or infidelity on the part of the wife disputing the paternity of the child born during the subsistence of their marriage, the child is not a necessary party.

JUDGMENT :

Kauser Edappagath, J.

Can a direction to undergo Deoxyribonucleic Acid Test (commonly known as DNA Test) be given in a proceedings for divorce to establish the husband’s assertion of infidelity and adultery on the part of the wife without the child in the party array? -is the core question falls for consideration in these Original Petitions.

2. The husband is the petitioner in both the original petitions. The first respondent is the wife. The second respondent is the brother-in-law (sister’s husband) of the first respondent.

3. The petitioner preferred OP No.1921/2013 for dissolution of marriage on the ground of cruelty, desertion and adultery and OP No.868/2016 for recovery of money and gold ornaments while the first respondent preferred OP No.432/2018 for recovery of money at the Family Court, Thiruvananthapuram (for short, 'the court below'). The joint trial of all the three petitions was ordered by the court below.

4. The main allegation of the petitioner in OP No.1921/2013 is that the first respondent has been living adulterous life with the second respondent and the child born to the first respondent is that of the second respondent. To prove infidelity and adulterous act on the part of the first respondent, the petitioner filed IA No.1570/2019 to conduct DNA test of the first respondent's son as also himself. The court below after hearing both sides dismissed the said application as per the impugned order dated 1/7/2019 on the ground that the child is a necessary party to the petition and without the child on the party array, its paternity and legitimacy cannot be determined. Thereafter, the petitioner filed three interlocutory applications at the court below; IA No.2535/2019 to implead the child, IA No.2536/2019 for consequential amendment and IA No.2731/2019 to appoint the first respondent as the guardian of the child. The petitioner also filed similar applications as IA Nos.2537/2019, 2538/2019 and 2732/2019 in OP No.868/2016. The court below as per common order dated 20/9/2019 dismissed all those applications holding that the applications were highly belated. Challenging the orders in IA Nos.1570/2019, 2535/2019, 2536/2019 and 2731/2019 in OP No.1921/2013, OP(FC) 679/2019 has been filed. Challenging the order in IA Nos.2537/2019, 2538/2019 and 2732/2019 in OP No.868/2016, OP(FC) No.670/2019 has been filed.

5. Heard both sides and perused the records.

6. OP No.1921/2013 has been filed for dissolution of marriage on the ground of cruelty, desertion and adultery. The marriage between the petitioner and the first respondent was solemnized on 7/5/2006. A child was born to the first respondent on 9/3/2007. The definite case of the petitioner is that the first respondent is having adulterous relationship with the second respondent and the child was born in the said illicit relationship. The petitioner has also taken a specific plea that he was suffering from infertility and incapable to have a child. The application to conduct DNA test has been filed to prove that he is not the father of the child and thereby to substantiate his assertion of infidelity and adultery. The first respondent opposed the application on the ground that in a lawyer notice sent by the petitioner as well as in the service records of the petitioner, he has admitted that he is the father of the child. It was further contended that in the birth certificate of the child also, the petitioner was shown as the father. The court below dismissed the application not on merits, but on the ground that the child was not impleaded. Thereafter, when the petitioner filed application to implead the child and for consequential amendment, those applications were also dismissed on the ground of delay.

7. The learned Counsel for the petitioner submitted that but for the DNA test, it would be impossible for the petitioner husband to establish and confirm the assertions made by him in his pleadings and hence, the court below ought to have ordered the DNA Test. The Coun