JUDGMENT :

Dr.Kauser Edappagath, J.

Ext.P4 order passed by the Family Court, Ernakulam dismissing the application to send the parties for DNA paternity test is under challenge in this original petition. The 1st petitioner is the wife of the 2nd petitioner. The respondent is the former husband of the 1st petitioner. The marriage between the 1st petitioner and the respondent was dissolved by a decree of divorce on 30.03.2019. Even before that, the 1st petitioner and the 2nd petitioner were living together and the 3rd petitioner was born in the said relationship on 13.08.2018. Since the 3rd petitioner was born during the subsistence of the marriage between the 1st petitioner and the respondent, the petitioners have filed O.P.NO.130/2020 before the Family Court for a declaration that the 3rd petitioner is the son of the 2nd petitioner.

2. In order to prove the paternity of the 3rd petitioner, the petitioners have moved an application as Ext.P3 before the court below to conduct a DNA paternity test to prove that the 2nd petitioner is the biological father of the 3rd petitioner. The court below as per Ext.P4 order dismissed the said petition with the following observation:

“Not opposed by the respondent. Heard the petitioner. This court is not clothed with any obligation to send the parties for DNA test. It is for them to have the test got conducted on their own by approaching the authorities and to produce the result before court to canvas for the relief prayed for.

So this petition is dismissed without prejudice to the petitioner's right to get the DNA test conducted at their own initiative by approaching the authorities directly for which no fiat of this court is needed.”

The said order is under challenge in this original petition.

3. Heard both sides.

4. The learned counsel for the respondent submitted that he has no objection in sending the parties for DNA test. It appears that the respondent admits that the 2nd petitioner is the biological father of the 3rd petitioner. Order XXVI Rule 10 A of the CPC empowers the court to conduct any scientific investigation. Under Section 45 of the Indian Evidence Act, 1872, the report of the scientific expert is relevant. To adjudicate the question of paternity, it is necessary to conduct the DNA test. It is to be done under the order of the Court. Hence, the court below ought to have allowed Ext.P3 application.

5. For the reasons stated above, we are of the view that Ext.P3 application is liable to be allowed. Accordingly, we set aside Ext.P4 order dated 11.2.2021 of the Family Court, Ernakulam. Ext.P3 application shall stand allowed. After receiving the DNA test report, the court below shall dispose of the original petition on merits in accordance with law.

This original petition is disposed of.