IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 14^TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943 OP (FC) NO. 670 OF 2019 AGAINST THE ORDER DATED 20/9/2019 IN IA NOS.2537/2019, 2538/2019 and 2732/2019 IN OP 868/2016 OF FAMILY COURT, THIRUVANANTHAPURAM PETITIONER/PETITIONER:

XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS.SINDHU SANTHALINGAM SRI.A.D.SHAJAN RESPONDENTS/RESPONDENTS:

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3 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS.SRI.BRIJESH MOHAN SRI.SHAJIN S.HAMEED SMT.RESMI G. NAIR THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON

24.08.2021, ALONG WITH OP (FC).679/2019, THE COURT ON

14.09.2019 THE FOLLOWING:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 14^TH DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943 OP (FC) NO. 679 OF 2019 AGAINST THE ORDER IN IA NOS.1570/19, 2535/19, 2536/19 AND

2731/2019 IN OP 1921/2013 OF FAMILY COURT, THIRUVANANTHAPURAM PETITIONER/PETITIONER:

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1 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX

2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS.SRI.BRIJESH MOHAN SRI.SHAJIN S.HAMEED SMT.RESMI G. NAIR THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON

24.08.2021, ALONG WITH OP (FC).670/2019, THE COURT ON

14.09.2021 DELIVERED THE FOLLOWING:

"C.R."

J U D G M E N T Dated this the 14^th day of September, 2021 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