[Cites 4, Cited by 0]
Kerala High Court
Potty vs Shaji on 6 January, 2026
Author: C.S.Dias
Bench: C.S.Dias
2026:KER:15
RP NO. 289 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 6TH DAY OF JANUARY 2026 / 16TH POUSHA, 1947
RP NO. 289 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 19.01.2023 IN OP(C)
NO.1245 OF 2022 OF HIGH COURT OF KERALA
REVIEW PETITIONER/RESPONDENT NO.1:
POTTY
AGED 70 YEARS
S/O RAMAN, POOVAMPALATHINKAL HOUSE, VADASSERY KARA,
KOTTAPADY VILLAGE, KOTHAMANGALAM TALUK. PIN-686 695.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SHRI.C.DILIP
SHRI.R.PRADEEP
SMT.ANUSHKA VIJAYAKUMAR
RESPONDENTS/PETITIONER & RESPONDENT NO.2:
1 SHAJI
AGED 52 YEARS
S/O POTTY.P.R, POOVAMPALATHINKAL HOUSE, NOW RESIDING
AT THANNIKKAL HOUSE, KEEZHILLAM.P.O, RAYAMANGALAM
VILLAGE, KUNNATHUNADU TALUK , PIN-683 541.
2 LEELA
AGED 70 YEARS
W/O LATE GOPI, THANNIKKAL HOUSE, KEEZHILLAM KARA,
KEEZHILLAM.P.O, RAYAMANGALAM VILLAGE, KUNNATHUNADU
TALUK, PIN-683 541.
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RP NO. 289 OF 2023
2
BY ADV SHRI.M.K.GOPIMOHANAN
THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON
03.12.2025, THE COURT ON 06.01.2026 DELIVERED THE FOLLOWING:
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RP NO. 289 OF 2023
3
C.S.DIAS,J.
====================
R.P.No.289 of 2023
--------------------------------------
Dated this the 6th day of January, 2026
ORDER
The review petition is filed to review the judgment
passed in the above-captioned original petition. The review
petitioner was the 1st respondent in the original petition,
which was filed by the 1st respondent herein assailing the
order passed in I.A.No.4 of 2021 in O.S.No.387 of 2019 by
the Court of the Munsiff, Perumbavoor (in short, 'Trial
Court'), declining to refer the parties to the suit to undergo
a Deoxyribonucleic Acid (DNA) Test. The 2nd respondent in
the review petition, the mother of the 1st respondent, was
the 2nd respondent in the original petition. For convenience,
the parties are referred to by their status in the review
petition.
2. The 1st respondent has filed the suit to declare
that he is the son of the petitioner and the 2 nd respondent.
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However, the petitioner has denied the said allegation. On
the contrary, the 2nd respondent has admitted the assertion
in the plaint. In view of the petitioner's denial of the
relationship and the paternity of the 1st respondent, the
latter filed an application to refer the parties to the suit to a
DNA Test for the proper determination of the suit.
However, the Trial Court dismissed the application.
Challenging the said order, the original petition was filed.
By the impugned judgment, this Court set aside the order
passed by the Trial Court and referred the parties to the
Rajiv Gandhi Centre for Biotechnology, Thiruvananthapuram,
for conducting the DNA Test.
3. It is the petitioner's case in the review petition
that, as he was suffering from age-related ailments, he was
precluded from engaging a lawyer to contest the original
petition. Consequently, the impugned judgment was passed
without affording him an opportunity of being heard. The
DNA Test can be ordered only in deserving cases, where
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RP NO. 289 OF 2023
there is no possibility of adducing any other evidence.
Furthermore, this Court has failed to consider that an
individual cannot be compelled to undergo a DNA test, as
such compulsion would infringe their personal liberty and
right to privacy. This Court has also failed to consider the
difficulties and inconveniences that would be imposed on
the parties by the proposed DNA Test. There is an error
apparent on the face of the judgment.
4. I have heard Sri. Krishnanunni T., the learned
Senior Counsel appearing for the petitioner, assisted by
Sri.C. Dilip; Sri. M.K. Gopimohanan, the learned counsel
appearing for the 1st respondent and Sri. Jayaprasad M.R.,
the learned counsel appearing for the 2nd respondent.
5. The learned Senior Counsel for the petitioner
reiterated the contentions in the review petition. He
contended that, as the 2nd respondent has admitted her
relationship with the petitioner, there is no necessity to
conduct a DNA Test. He placed reliance on the decision of
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the Hon'ble Supreme Court in Ivan Rathinam v. Milan
Joseph [2025 KHC OnLine 6076] to buttress his contention
that no person can be compelled to undergo a DNA Test as
it would infringe their right to privacy.
6. The learned counsel for the respondents
vehemently opposed the review petition. They submitted
that there is no error apparent on the face of the judgment
warranting its review. It is after considering the
authoritative precedents on the point and the facts of the
case that this Court ordered the DNA Test, particularly
because the petitioner has denied the paternity of the 1 st
respondent. The petitioner's sole intention is to protract the
determination of the suit. Hence, the review petition may
be dismissed.
7. The 1st respondent's specific case is that he was
born out of an outside the marriage relationship between
the petitioner and the 2nd respondent. Although the 2nd
respondent has admitted the above assertion in her written
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statement, the petitioner has denied it.
8. To disprove the assertion of the petitioner that he
is not the putative father of the 1 st respondent, the latter
filed the application to refer the parties for a DNA Test.
Although the Trial Court had dismissed the said application,
this Court, after considering the principles laid down by the
Hon'ble Supreme Court in the decisions in Nandlal
Wasudeo Badwaik v. Lata Nandlal Badwaik and
another [AIR 2014 SC 932], Sharda v. Dharmpal [AIR
2003 SC 3450] and the decision of the Delhi High Court in
Rohit Shekhar v. Narayan Dutt Tiwari and another
[AIR 2012 Delhi 151], held that the 1st respondent had
made out a strong prima facie case to subject the parties to
a DNA Test, which would be the best course to decide the
'lis'.
9. In Ivan Rathinam's case (supra), the Hon'ble
Supreme Court, after considering the earlier precedents on
the point of subjecting a person to DNA Test, the right to
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privacy and the right to dignity of a person, has declared
that the courts should balance the interests of those
involved and must consider whether it is possible to arrive
at a truth without the use of a DNA Test. It is further held
that the courts should consider the existing evidence to
assess the presumption of legitimacy. Nonetheless, if the
evidence is insufficient, the courts may order a DNA Test.
Once the insufficiency of evidence is established, the court
must consider whether ordering a DNA Test is in the best
interest of the parties involved and must ensure that it does
not cause undue harm to the parties. The two principles
laid down to order a DNA Test are: (i) insufficiency of
evidence; and (ii) a positive finding regarding the balance
of interests.
10. In the case at hand, it is undisputed that there is
no legal marriage between the petitioner and the 2 nd
respondent. The respondents claim that the 1st respondent
was born in an outside the marriage relationship between
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the petitioner and the 2nd respondent, which is bluntly
denied by the petitioner. Therefore, the question of
legitimacy and the conclusive proof under Section 112 of
the Indian Evidence Act, 1872, does not arise in the present
case. It is a case of disputed paternity. Now, in such cases,
where there is a total denial of the relationship leading to a
child's birth, scientific evidence is one of the better-known
methods recognised by the law to ascertain the truth. It is
after considering the exposition of law in the above-cited
precedents that this Court referred the parties to a DNA
Test. In light of the materials on record and the law on the
point, I am satisfied that the 1st respondent has made a
strong prima facie case to order a DNA Test, due to the lack
of other evidence, and the same would be the best course
available to decide the question of paternity. I don't see any
reason why the petitioner should shirk away from
subjecting himself to a DNA Test, particularly since he has
confidently denied the paternity of the 1 st respondent. The
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balance of interest rests in favour of the 1st respondent. I
don't find any error apparent on the face of the judgment
warranting interference by this Court. It is clarified that, if
the petitioner refuses to undergo a DNA test, the Trial
Court shall draw an adverse inference against him. The
review petition is devoid of any merit and is consequently
dismissed. The Registry is directed to forward a copy of the
order to the Trial Court to comply with the directions in the
judgment in the original petition.
Sd/-
C.S.DIAS, JUDGE
dkr
