RADHAKRISHNAN Vs. INDU

JUDGEMENT

(1.) The appellant was the husband of the respondent. The respondent gave birth to a child during the continuance of her marriage with the appellant. The appellant denied the paternity of the child. Two petitions were filed before the family court by the appellant against the respondent. One was for divorce. The relief of divorce was decreed. Two reliefs were sought in the other petition. One, a declaration that the appellant is not the father of the child. Two, the appellant should be compensated to the tune of Rs 5,00,000/- by the respondent for her having lived in adultery. Both the reliefs were refused by the family court. Hence the appellant has come in appeal.

(2.) The child was in the womb when the petition was filed. The child was born pending the proceedings. The petition was amended to state that fact. But the child was not impleaded as a respondent. The parties to the proceedings agreed for a DNA test to ascertain the paternity of the child. The test was conducted. The test result favoured the appellant. The family court dismissed the petition holding that the appellant had access to the respondent when the child was begotten. The court relied on the presumption under Sec.112 of the Indian Evidence Act. The appellant wants the finding of the trial court set aside and a decree as sought for by him granted. He relies on the decision in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, 2014 AIR(SC) 932. The apex court holds that the DNA test result prevails over the conclusive proof under Sec.112 of the Evidence Act in deciding the paternity of a child. But the question which should be considered and decided ahead of the said question is whether the paternity of a child can be decided without the child on the array of parties.

(3.) We heard Sri.P.K.Muhammed and Sri.D.Ganesh Kumar, the learned counsel for the appellant and the respondent respectively. Advocate Sri.G.Unnikrishnan was appointed amicus curiae. We heard the learned amicus curiae also.