JUDGMENT :

(P.G. Ajithkumar, J.)

1. The respondent in O.P.No.175 of 2022 on the files of the Family Court, Pala has filed this original petition under Article 227 of the Constitution of India. She seeks to set aside Ext.P8 order of the Family Court by which a Deoxyribonucleic acid (DNA) test of blood samples of the respondent and the child Yealia Gerard Mosze was ordered.

2. On 08.12.2022, notice on admission was directed to be served on the respondents. An interim stay of further proceedings in O.P.No.175 of 2022 for a period of one month was ordered on the same date. The interim order was extended from time to time.

3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

4. A DNA test may be required in a family dispute if paternity is in question. Report of DNA test is the opinion of an expert relevant under Section 45 of the Indian Evidence Act, 1872. Need to have evidence or opinion pertaining to a fact arises if that fact is required to be proved. Proof is needed when a fact is in dispute. An admitted fact need not be proved for, Section 58 of the Evidence Act dispenses with proof of an admitted fact.

5. The respondent has no dispute about the paternity of the child, Yealia Gerard Mosze, aged 6 years. He unequivocally admitted in Ext.P4, the petition in O.P.No. 175 of 2022 and Ext.P2 the proof affidavit filed by him in O.P.No.417 of 2020 before the Family Court, Pala that he is the father of the child and was born in his matrimonial relationship with the petitioner. The question is can, despite such admission, the respondent ask for a DNA test?

6. The specific contention of the respondent is that he and the petitioner are the wife and husband. Their marriage was solemnised on 28.02.2011. The child Yealia Gerard Mosze was born on 01.03.2017. Since their marital relationship was estranged, they filed O.P.No.417 of 2020 before the Family Court, Pala and obtained a decree of dissolution of their marriage on mutual consent on 25.03.2021. Subsequently, the respondent filed O.P.No.175 of 2022 alleging that he was being denied access and opportunity to interact with the child. He seeks a decree declaring him the legal guardian of the child and to get permanent custody of the child. In that original petition, the respondent filed I.A.No.2 of 2022 for an order to conduct a DNA test of the child to ascertain whether he is the biological father of the child for the reason that there are rumours that he is not the father. The Family Court allowed that petition.

7. The earned counsel appearing for the petitioner would submit that since there is no dispute regarding the paternity of the child, instead, the respondent categorically has admitted the paternity, a DNA test cannot be ordered. The learned counsel would submit that the reason why the respondent seeks to have a DNA test that there was a talk in the locality doubting the child's paternity is too flimsy a reason to order a DNA test.

8. The learned counsel appearing for the respondent on the other hand would submit that there is pleading denying the paternity of the child and non access in the affidavit filed by the respondent in support of I.A.No.2 of 2022 and in the light of that pleading DNA test became vital. The learned counsel would submit that there is an imminent necessity of conducting such a test since if he is not the father, there is no need for him to pursue O.P.No.175 of 2022 which was filed by him for getting custody of the child. The learned counsel in support of his contentions has placed reliance on the decisions reported in Saji Mathew v. Bindu and another [2016 (2) KHC 907]; Ashok Kumar v. Raj Gupta and others[(2022) 1 SCC 20]; Nandlal Wasudeo Badwaik [(2014) 2 SCC 576] and Dipanwita Roy v. Ronobroto Roy [2014(4) KHC SN 14(SC)].

9. In Nandlal Wasudeo Badwaik (supra), the application for conducting a DNA test was not opposed by the respondent and accordingly the Court has ordered the test. The test was con