A.M. Babu, J.
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 (AIR 2014 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.
4. We summarise below the arguments of the learned counsel for the appellant. The child is an unnecessary party to the suit
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. Its presence in the suit does not have any bearing whatsoever in deciding the suit on merits. The illegitimacy of the child is only incidental to the claim for compensation against the respondent to prove her infidelity. The child's presence in the suit is not necessary to decide the relief of compensation claimed by the appellant. The child has no role in proving its legitimacy or disproving its illegitimacy. The child cannot adduce evidence to prove that its mother and the appellant had access to each other at the relevant time. The DNA test result cannot be reversed even if the child is a party to the suit. The verdict in the suit does not bind the child. The child if it wishes to establish its paternity and legitimacy may do so by separate suit after attaining majority. Dragging the child to the present litigation only causes mental agony to it. No objection was taken by the respondent in her written-statement that the suit was bad for nonjoinder of any necessary party.
5. The learned amicus curiae has submitted that the child is a necessary party to a suit for declaration of its status as any such declaration granted would affect its legal rights and status. It was also argued by the learned amicus curiae that a judgment declaring the illegitimacy of the child without hearing it would be a nullity. The learned counsel for the respondent also argued in the same lines. The learned amicus curiae has referred to the provisions of Sec.10 of the Family Courts Act and Sec.99 and order I rules 3, 9, and 13 of the Code of Civil Procedure. According to the learned counsel for the respondent, Secs 34 and 35 of the Specific Relief Act shall also be read. The learned counsel for the parties and the learned amicus curiae have relied on reported judicial pronouncements in support of their arguments.
6. The learned amicus curiae submitted that going by the findings recorded by the family court, the appellant was not even entitled to a decree for divorce. The appellant sought divorce on three grounds. Adultery, cruelty and desertion were those grounds. The family court found that the appellant failed to prove cruelty and desertion. The ground of adultery was rejected for non-compliance with rule 11 of the Hindu Marriage (Kerala) Rules, 1963. But a decree of divorce was granted finding that the marriage had broken down irretrievably. Irretrievable break down of marriage is not a ground for divorce under the Hindu Marriage Act. However, we leave it there since the respondent did not appeal against the decree of divorce.
7. The child is not a necessary party if the suit is for compensation only. But the appellant seeks a declaration also. He seeks to declare that he is not the father of the child. Thereby the illegitimacy of the child is sought to be declared. If a declaration as sought for is granted, the child is the affected person. The child alone will be the person affected by the declaration. Declaring illegitimacy of the child amounts to bastardising the child. Therefore the child is a necessary party to the suit. Without the child on the party array its paternity and legitimacy cannot be decided to grant the declaration. Its illegitimacy cannot be declared. True, as argued by the learned counsel for the appellant, the decree declaring illegitimacy of the child in its absence on the array of parties does not bind it. But whether or not a decree binds the affected person is not the test to decide whether that person is a necessary party or not to the suit. The declaratory decree will not be binding on the child, but there will be a cloud on its legal character and status. There are rights and obligations attached to the status of a person. Civil consequences flow from the declaration. Therefore, we repeat, the child is a necessary party to the suit. Audi alterem partem is one of the fundamental principles of judicial procedure. The child has a right of audience through its guardian before the issue of its legitimacy is decided. We are clear in our minds that the child is a necessary party to the suit since a relief is sought to declare its illegitimacy. The declaration is sought not against the child's mother, but against the child and therefore the child is a necessary party to the suit. The child is a necessary party when the declaration is directed against it.
8. The learned counsel for the parties and the learned amicus curiae have cited reported decisions of the apex court and various high courts. We do not find it necessary to refer to those decisions. For, those were cases where the apex court and the high courts on the facts of those cases decided whether the persons who sought to be impleaded were necessary parties or not to the respective proceedings. Whether a person is a necessary party or not depends upon the facts of each suit and the reliefs sought therein. But we find it appropriate to refer to one decision cited by the learned amicus curiae as the facts of the said case are very close to the facts of the present suit. The decision is Lilamani v. Bien Aime Pouchepalliamballe (2000 (1) Hindu LR (Madras) 374). That was a suit for declaration that no child by name Dilcoumar was born to the 1st defendant through the plaintiff's husband. The child was not made a party to the suit. It was held that the suit without the child on the party array was not maintainable. We are in agreement with the said conclusion of the learned single judge of the Madras High Court.
9. According to the learned counsel for the appellant, the presence of the child in the suit has no bearing in deciding the suit on merits. As we have already stated, the child has a right of audience in the suit, through its guardian, for deciding whether the declaratory decree sought for is grantable. We have also stated that the child is a necessary party since the declaration is sought against the child and not against its mother. We are therefore unable to agree with the learned counsel.
10. The opening sentence of paragraph 7 of this order is written by us accepting the argument of the learned counsel for the appellant that the child's presence in the suit is not necessary to decide the relief of compensation claimed against the respondent. But we are unable to accept the argument of the learned counsel that illegitimacy of the child is only incidental to the claim for compensation against the respondent to prove her infidelity. The relief of declaration sought by the appellant cannot be considered incidental to the relief of compensation. Compensation is sought against the respondent for her having allegedly lived in adultery. It is not necessary to seek a declaration as sought for by the appellant to claim compensation. The two reliefs asked for by the appellant are independent of each other and one cannot be linked to the other. Therefore the appellant cannot be heard to say that the relief of declaration is only incidental to the claim for compensation.
11. Another submission of the appellant's learned counsel is that the child has no role in proving its legitimacy or disproving its illegitimacy. The learned counsel has submitted that the child cannot adduce evidence to prove that its mother and the appellant had access to each other at the relevant time. The aforenoted submissions too do not impress us. The capability of a person to adduce evidence by himself on a disputed fact is not the test to decide whether he is a necessary party or not. That apart, it is incorrect to think that the child cannot produce any evidence. It is true that there is no point in the child entering the witness-box to give evidence even after reaching a certain age. But the child can examine competent witnesses. The burden is on the appellant to prove non-access. There is no burden on the child to prove that the appellant had access to the respondent when the child was begotten. Right or wrong, the finding of the family court was that the appellant had access to the respondent at the relevant time. We have no intention to check the correctness of the said finding as we do not propose to go into the merits of the case. Our point is only that the child is a necessary party to the suit whatever be the quality of evidence which the child may be able to produce. We wish to clarify that the question is not whether the child is able to prove its legitimacy or disprove its illegitimacy. The question is whether the child through its guardian is entitled to be heard on the issue which the family court is called upon to decide. The child is certainly entitled to.
12. Let the child, if it wishes so, establish its paternity and legitimacy by separate suit after attaining majority. This was yet another submission of the learned counsel for the appellant. We do not consider it a legal argument. What are the options of the child subsequent to the declaratory decree is not the question under consideration. If the appellant obtains a declaration, the child may have the right to sue to get the decree set aside or the child may sue for declaration of its paternity and legitimacy. The availability of a remedy for the child is no justification to grant a declaration against it behind its back. We refer to two decisions cited by the learned amicus curiae. An argument of almost similar nature was rejected by the Madras High Court holding that the argument was besides the point being considered. The decision is Sobhanadri Appa Rao Bahadur v. Parthasarathi Appa Rao Savai Aswa Rao Bahadur (AIR 1932 Madras 583). We are in agreement with the division bench of the Madras High Court. The apex court holds that both procedural law and substantive law mandate that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect. The decision is Khetrabasi Biswal v. Ajaya Kumar Baral ((2004) 1 SCC 317). No court of law should waste its precious time to grant a decree which is a nullity.
13. We next consider the submission of the learned counsel for the appellant that the DNA test result cannot be reversed even if the child is a party to the suit. Ext C1 is the DNA profile report signed by the controller, Rajiv Gandhi Centre for Biotechnology, Thiruvananthapuram. The DNA fingerprinting test was directed to be conducted in a suit where the child was not a party. Ext C1 report was filed in such a suit. The child is not bound by Ext C1 report since the test was conducted as directed in an order which was passed without affording an opportunity of being heard to the child. The child has a right to be heard through its guardian before the court takes a decision whether it should direct to conduct the test. We may in this connection refer to the decision in Sunil Eknath Trambake v. Leelavati Sunil Trambake (AIR 2006 Bombay 140) brought to our notice by the learned amicus curiae. It is held that courts cannot direct DNA or any such test without hearing the person concerned irrespective of the fact whether he is a minor or major. We accept the correct dictum laid down by the Bombay High Court. The same decision holds further that if such person is a minor, he should be heard through the natural guardian. The learned counsel for the appellant submitted that the respondent being the natural guardian was heard before the DNA fingerprinting test was ordered and that she consented for such a test being conducted. But the respondent was heard in the matter not in the capacity of the guardian of the minor, but in her individual capacity only. It is for the court to decide who should be the guardian of the minor in the suit; whether the respondent or any other person including a court guardian. Ext C1 report is liable to be eschewed while considering whether the declaratory decree sought for by the appellant could be granted. The question of reversal of Ext C1 report does not arise at all.
14. We were surprised to hear the argument on the side of the appellant that dragging the child to the present litigation would only cause mental agony to it. The appellant is a person who is even now adamant that he should get a declaration against the child concerning its legitimacy behind its back. The child's mental agony is not a matter for such a person to worry about. Does he believe that the child will not have any mental agony if the declaration is granted without hearing it ? What we consider is the legal right of the child and not any other matter including mental agony.
15. True, as submitted by the learned counsel for the appellant, the respondent did not take a contention that the suit was bad for non-joinder of a necessary party, the child. In this connection we refer to the provisions of law mentioned by the learned amicus curiae and the learned counsel for the respondent. Sec.10 of the Family Courts Act provides, inter alia, that the Code of Civil Procedure shall apply to the suits and other civil proceedings before a family court. Rule 50 of the Family Courts (Kerala) Rules, 1989 also provides so. Sec.10 of the Family Courts Act states further that for the purposes of the provisions of CPC, a family court shall be deemed to be a civil court and shall have all the powers of such court. Order I of CPC is captioned 'Parties to Suits'. Rules 3, 9 and 13 of Order I are the relevant provisions which we should consider besides Sec.99. Rule 3 provides as to who are to be joined as defendants. Rule 9 states that no suit shall be defeated by reason of the misjoinder or non-joinder of parties. Rule 9 states further that the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The general rule of procedure in rule 9 is subject to the proviso thereto. The said general rule shall not apply to non-joinder of a necessary party as the proviso provides. That means non-joinder of a necessary party stands on a different footing and is a ground to dismiss a suit. Rule 13 insists on to take all objections on the ground of non-joinder or misjoinder of parties at the earliest opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen. It is also provided therein that any such objection not so taken shall be deemed to have been waived. Rule 13 has application only to cases of mere non-joinder or misjoinder of parties. It has no application to a case of non-joinder of a necessary party. We are able to assert so in view of the proviso to rule 9 and the proviso to Sec.99 of CPC. We have already considered the effect of the proviso to rule 9. Sec.99 provides, inter alia, that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties. The proviso clarifies that nothing in Sec.99 shall apply to non-joinder of a necessary party. That means non-joinder of a necessary party by itself is a ground to reverse or substantially vary a decree in appeal. It by itself is a ground to remand a suit, after setting aside the decree, in an appropriate case. The provisions of the Code of Civil Procedure considered by us do take us to the conclusion that the right of a necessary party to contest the suit does not depend upon the mercy of a contention taken by a defendant that the suit is bad for non-joinder of a necessary party. Whether a person is a necessary party or not is a question of fact depending upon the relief claimed in the suit. But once it is established or the court is satisfied that he is a necessary party to the suit, it becomes a question of law and therefore can be raised for the first time in appeal. The failure of the respondent to take the contention that the child is a necessary party to the suit is of no consequence and relevance.
16. The learned counsel for the respondent referred to Secs 34 and 35 of the Specific Relief Act. Sec.35 states the effect of a declaration, if granted. Sec.34 makes it clear that the grant of declaration is within the discretion of the court. The appellant cannot expect to receive the discretionary relief of declaration without impleading the person against whom the declaration is sought or the person who will be affected by the declaration or the person against whom the declaration is directed. Viewed from that angle too, the appellant is not entitled to a declaratory decree as sought for by him without the child on the array of parties.
17. Should we dismiss the appeal or remand the suit ? That is the next and last question. Had a contention been taken by the respondent on non-joinder of the child and the child was not impleaded despite such a contention being taken, we would have certainly thought of dismissing the appeal. As no such contention is taken by the respondent, we think it proper to give an opportunity to the appellant to implead the child. Even if the appeal is dismissed, the appellant may be entitled to file a fresh suit for declaration making the child a defendant. A remand appears to be the proper course. For, multiplicity of suits can be avoided. However, before taking a decision, we should consider the argument raised in this connection by the learned counsel for the respondent.
18. The respondent's learned counsel submitted that order XLI rule 23 of CPC would not apply as the dismissal of the suit was not on a preliminary point. That is true, but rule 23A of the same order certainly applies. It provides that where the court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the appellate court shall have the same powers as it has under rule 23. The family court dismissed the suit not on a preliminary point. The words 'the decree is reversed in appeal' appearing in rule 23A are wide enough to include the setting aside of a decree on any ground. We do consider a re-trial absolutely necessary since the trial was held and the evidence including Ext C1 DNA profile report was let in without the child on the array of parties. The child should not be compelled to be bound by the evidence so collected. We have already found that Ext C1 report is not binding on the child. We remand the suit under order XLI rule 23A of CPC directing a retrial.
19. The family court shall hold a trial de novo. Ext C1 cannot be let in evidence at the re-trial except to bind the respondent in relation to the relief of compensation. If any request comes for a DNA fingerprinting test, the trial court shall take a decision only after hearing the child if it has come of the age by now. If not, the child shall be heard through its guardian. The depositions of the witnesses now in the file cannot be used at the retrial for any purpose except under Secs 145, 155, 157 and 159 of the Indian Evidence Act.
20. We acknowledge the services rendered by the learned amicus curiae, Sri.G.Unnikrishnan.
21. The appeal is allowed. The judgment and the decree impugned in the appeal are set aside. The suit is remanded to the trial court for disposal anew after a re-trial. The appellant shall be afforded an opportunity to implead the child. We make no order as to costs in the appeal. The parties shall appear before the family court on 10.08.2018.