Child will be stigmatised, branded bastard if DNA test not allowed despite proof of cohabitation between man and woman: Kerala High Court

The Court made the observation while upholding a family court’s direction to conduct a DNA test to prove paternity of a child.

The Kerala High Court recently held that when there is prima facie evidence of long cohabitation between a man and woman, pleas for a DNA test to determine the paternity of a child allegedly born out of such a relationship cannot be thrown aside as this would cast a social stigma upon the child as well as the mother.

Justice Mary Joseph made the observation while rejecting a man’s plea challenging a family court order that directed him to undergo a blood test for DNA verification to prove the paternity of a child.

The Court noted that the woman, who claimed to be the man’s wife, had made out a prima facie case that the two had cohabited. On the other hand, the man was found to have thoroughly failed to establish a prima facie case to back up his claim that the woman led an immoral life.

Hence, the Court opined that it could not throw aside the woman’s prayer for a DNA test to determine the paternity of her child.

“If an order of this nature is declined that would have the impact of bastardising the minor girl child among the public. Undoubtedly that would caste a social stigma upon the child as well as the mother respectively as ‘bastard’ and ‘immoral’,” the Court said.

Referring to disputed claims of maintenance sought by the woman for herself and the child, the Court said,

“True that an illegitimate child is also eligible for maintenance allowance but, for that paternity is a very relevant aspect to be established so as to enable the court to direct payment from the respondent who was alleged as his father.”

The man (petitioner) and the woman were stated to have fallen in love and entered into a relationship. The woman claimed that they lived together as husband and wife.

After the woman became pregnant, the petitioner is stated to have sent her back to her home in Mumbai. Further, he is alleged to have promised over the phone that he would marry her.

The woman further claimed that the petitioner sent her money for expenses and treatment, and even insisted that she come to Kollam, where he stayed at the time, for her delivery so that he could attend to her in the hospital.

However, when she came to Kollam later, she got to know that the petitioner had married another woman, the Court was told.

When she confronted him over the phone, he promised her that he will look after her and the child and threatened her against disclosing their relationship to anyone else.

The woman further claimed that despite their differences, they continued to cohabitate together and that the petitioner took care of all the expenses of the woman and their girl child.

The petitioner also agreed to buy a flat in the name of the woman using his money and also to take an insurance policy in the name of their daughter for her education and marriage.

However, he failed to keep his word and the woman demanded compliance. Thereafter, the payment of money towards the maintenance was stopped by the petitioner in 2013.

The woman initially filed a complaint before the Kerala Women’s Commission and the latter ordered the respondent to undergo a blood test for DNA examination but it did not materialize due to the petitioner’s non-co-operation.

Subsequently, when the woman approached the Family Court, in Ernakulam, the petitioner denied marital relationship as well as cohabitation with the woman and refused paternity too.

The family court then directed the petitioner to undergo a blood test for DNA verification.

This prompted the petitioner to approach the High Court.

The petitioner contended that the woman was leading a loose life and was trying to humiliate him so as to extract money.

The Court after going through evidence and precedents said that there was prima facie evidence of long cohabitation between a petitioner and the woman.

Hence, it held that the order for DNA test of the petitioner to determine the paternity of the child cannot be thrown aside.

Therefore, the Court dismissed the petitioner and upheld the family court order.

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