DNA profiling should not be ordered solely based on claims of reputational damage without substantial evidence.

JUDGMENT

The petitioner calls into question the correctness of Ext.P5 order of the learned Family Court, Thalassery.

2. Through the impugned order, the fourth daughter of the petitioner has been directed to be subjected to DNA profiling. The records reveal that this has been done because, the respondent – the stated father of the child, has impelled a contention that the said child was born to the petitioner, in a relationship with another person, whose name has been mentioned.

3. Smt.Swarna Thomas – learned counsel for the petitioner, vehemently argued that Ext.P5 order was impermissible to have been issued by the learned Family Court because, it omitted to note that the Original Petition - namely OP No.1037/2022, was filed by the respondent not seeking divorce, but return of gold and compensation, on the allegation that she had “an illicit relationship with another person”. She argued that the couple have been married for more than 25 years and that they have three other children; but that the respondent has now made an allegation against the fourth child alone; adding that his intention is to scandalize her client, as also the child. She thus prayed that Ext.P5 be set aside.

4. In response, Sri.K.V.Pavithran – appearing for the respondent, submitted that his client had no other option, but to have filed IA No.3/2024 seeking DNA profiling of the fourth child because he is “convinced” that she was conceived not out of him, but in a relationship his wife had with another person. He, however, conceded that the Original Petition was filed by his client seeking the return of 11½ sovereigns of gold and for compensation for the “disrepute that he has had to face on account of the illicit relationship his wife had (sic),” but conceding that he has not filed a petition for divorce on such ground yet. He nevertheless contended that Ext.P5 is justified because, the only manner in which he can prove the alleged “illicit relationship” his wife had with another person is through the DNA profiling of the child.

5. We are afraid that we cannot find favour with the submissions of the learned counsel for the respondent because: for the first, as rightly argued by the learned counsel for the petitioner, the Original Petition has been filed not for divorce, but for return of gold and for compensation on the allegation that the petitioner had an “illicit relationship” with another person. For the second, the alleged person against whom the imputation has been made is not in the party array; and for the third, the learned Court ought to have been much more circumspect in allowing a DNA profiling of the child, solely for the purpose of consideration of a plea for compensation of the alleged “illicit relationship” of her mother.

6. We notice from the impugned order that the case of the respondent is that he is “doubtful” of the paternity of the child; and that it is, therefore, that the learned Court has held it necessary that she be subjected to a DNA profiling, invoking section 112 of the Indian Evidence Act . However, we cannot find any reason for the learned Family Court in having decided that a DNA test is necessary, or that the paternity of the child ought to be conclusively determined, particularly when the plea in the Original Petition was only as aforementioned. Prima facie, it is well settled that compensation for loss of reputation in the manner as now sought for by the petitioner – even if allowable - will have to be established through other cogent methods, and not by DNA testing of a child.

7. That apart, the child is stated to be 8 years in age and we cannot let her be scandalized merely on account of the matrim