JUDGMENT : Ravikumar, J. 1. Connubial discordancy between the couple, the petitioner and the respondent herein, led to the filing of O.P.No.1063 of 2013 by the latter, before the Family Court, Mavelikkara. The paternity dispute of their daughter sprang as an offshoot and it made the husband-the respondent herein to file I.A.No.1554 of 2016 in the said Original Petition. The respondent therein-the wife, filed this original petition against the orders dated 29.7.2016 (Ext.P5) and 12.8.2016 (Ext.P7) passed by the Family Court in the said interlocutory application. Ext.P3 is the copy of I.A.No.1554 of 2016 moved by the respondent herein and Ext.P4 is the objection filed thereon by the petitioner herein. After considering the rival pleadings and contentions the Family Court passed Ext.P5 order on the following lines:- “Both side present. Considering the contention of the parties and other relevant materials before the court I am of the view that the applicants (sic. application) can be allowed in interest of Justice. Hence the parties are directed to appear before the authorized officer of Rajeev Gandhi Centre for Biotechnology, Thiruvananthapuram at 10 AM on 5.08.2016 for DNA test. The respondent shall also take her minor daughter to the institute for DNA test. The petitioner shall pay the examination fees directly at the institute.” (emphasis supplied) 2. Subsequently, the petitioner herein filed Ext.P6 affidavit before the Family Court revealing the fact that the daughter, who at the time of filing of I.A.No.1554 of 2016 was a major, is unwilling to undergo DNA test and seeking instructions (rather direction) to the daughter to attend DNA test. Thereupon, the Family Court passed Ext.P7 order as hereunder:- “Respondent and her daughter failed to appear before the authorised officer as directed. Hence the IA is closed drawing adverse inference against respondent.” It is in the said circumstances that this original petition has been filed challenging Exts.P5 and P7. 3. We have heard the learned counsel for the petitioner and also the learned counsel appearing for the respondent. 4. The petitioner raised manifold contentions to assail Exts.P5 and P7. The nub of the contention is that Ms. Nimmy, the daughter whose paternity is disputed by the respondent herein, was not made a party in I.A.No.1554 of 2016 and she being a necessary party to the proceeding thereon, the order passed thereon, in her absence, is unsustainable. 4. The petitioner raised manifold contentions to assail Exts.P5 and P7. The nub of the contention is that Ms. Nimmy, the daughter whose paternity is disputed by the respondent herein, was not made a party in I.A.No.1554 of 2016 and she being a necessary party to the proceeding thereon, the order passed thereon, in her absence, is unsustainable. To fortify her contention the learned counsel appearing for the petitioner relied on a decision of this Court in Radhakrishnan v. Indu reported in ( 2018 (3) KLT 664 ). The counsel has also relied on the decision of the Hon'ble Apex Court in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Another ( (2010) 8 SCC 633 ) wherein and where-under the Apex Court, after referring to its earlier decision in Sharda v. Dharmpal ( (2003) 4 SCC 493 ), held that a matrimonial court has the power to order a person to undergo medical test and passing of such an order would not violate the right to personal liberty under Article 21 of the Constitution of India. The learned counsel for the respondent refuted such contentions and submitted that the Family Court is perfectly correct and justified in directing the petitioner to take her daughter Nimmy also to Rajeev Gandhi Centre for Biotechnology, Thiruvananthapuram for DNA test. Furthermore, it is contended that in view of the failure on the part of the petitioner herein and her daughter Nimmy to appear before the authorized officer of the said institution the Family Court is also justified in closing I.A.No.1554 of 2016 after drawing adverse inference against the respondent/petitioner herein. 5. In view of the rival contentions mainly the following questions of relevance crop up for consideration:- (i) Whether Ms. Nimmy was a necessary party in I.A.No.1554 of 2016 and if so, whether Exts.P5 and P7 orders could be sustained? (ii) Whether the Family Court was justified in directing the petitioner herein to take her daughter to Rajeev Gandhi Centre for Biotechnology, Thiruvananthapuram for DNA test? (iii) Whether the Family Court is correct in closing I.A.No.1554 of 2016 after drawing adverse inference against the petitioner herein? 6. We will consider the aforesaid questions with reference to the factual aspects obtained in the case on hand and in the light of the binding decisions on the subject involved in the lis, referred supra. (iii) Whether the Family Court is correct in closing I.A.No.1554 of 2016 after drawing adverse inference against the petitioner herein? 6. We will consider the aforesaid questions with reference to the factual aspects obtained in the case on hand and in the light of the binding decisions on the subject involved in the lis, referred supra. As already stated, O.P.No.1063 of 2013 is an original petition filed by the respondent herein seeking dissolution of marriage under Section 13(1)(i)(ia) and (ib) of the Hindu Marriage Act, 1955 and under Section 7 of the Family Court Act, 1984. In such circumstances, it cannot be said that the daughter viz., Ms. Nimmy is a necessary party in O.P.No.1063 of 2013. But, at the same time, it is relevant to note that I.A.No.1554 of 2016 was filed therein by the respondent herein disputing the paternity of Ms. Nimmy and seeking a direction to subject himself, the petitioner herein and the said Nimmy to DNA test at Rajeev Gandhi Centre for Biotechnology, Thiruvananthapuram. In the affidavit that accompanied I.A.No.1554 of 2016 the respondent herein had stated thus:- XXXX (emphasis supplied) From the aforesaid recitals in the said affidavit it is evident that the respondent herein himself had asserted therein that Nimmy has already became a major and he disputes her paternity. The impugned Ext.P5 order would reveal that the Family Court had failed to take note of the said specific statement of the respondent herein and treated Nimmy as a minor and then directed the petitioner herein to take her minor daughter viz., Nimmy to Rajeev Gandhi Centre for Biotechnology, Thiruvananthapuram for DNA test. We need not consider the question as to whether in the case of a minor in regard to the issue of paternity, the said minor is a necessary party in the proceedings concerned in view of the indisputable position obtained in this case that by the time Ext.P3 application was made Nimmy had become a major. In the aforesaid indisputable factual position the decision in Radhakrishnan's case (supra) assumes relevance. In the said decision a Division Bench of this Court held:- “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. In the said decision a Division Bench of this Court held:- “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 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.” (emphasis supplied) 7. Another Division Bench decision of this Court in Ramakrishnan v. Mrinalini reported in 2018 (3) KLT 5 also assumes relevance in the contextual situation. The child is a necessary party when the declaration is directed against it.” (emphasis supplied) 7. Another Division Bench decision of this Court in Ramakrishnan v. Mrinalini reported in 2018 (3) KLT 5 also assumes relevance in the contextual situation. In the said decision after referring to Section 114 of the Indian Evidence Act this Court held:- “If the major children are not co-operating with the DNA test on the ground of privacy, reputation and dignity, what will be the consequence in the appreciation of evidence of the case has to be kept in mind while any order is passed. No adverse inference can be drawn in the given case as the contesting parties are the husband and wife and not the children. When the children are major, surely they cannot be compelled to give blood sample in a civil proceeding where they were not parties.” 8. In view of the aforesaid decisions in Radhakrishnan's case and Ramakrishnan's case and also taking into account the indisputable facts that the child in question viz., Nimmy was a major even at the time of filing of Ext.P3 application and she is not a party to the main proceedings as also in I.A.No.1554 of 2016 we have no hesitation to hold that the Family Court went wrong in issuing direction to the petitioner herein to take the aforesaid Nimmy also to Rajeev Gandhi Centre for Biotechnology, Thiruvananthapuram for DNA test. A bare perusal of Ext.P5 would reveal that despite the specific assertion in Ext.P3 application by the respondent herein that the child in question is a major the Family Court had failed to take note of the said fact and directed the respondent/petitioner herein to take her minor daughter to Rajeev Gandhi Centre for Biotechnology, Thiruvananthapuram for DNA test. In the light of the aforesaid decisions and the indisputable facts Ext.P5 to the extent it directed the respondent to take her daughter viz., Ms. Nimmy to the institution for DNA test cannot be sustained. 9. While considering the sustainability of Ext.P5 it is only appropriate to refer to the the decision of the Apex Court in Bhabani Prasad Jena's case (supra). Nimmy to the institution for DNA test cannot be sustained. 9. While considering the sustainability of Ext.P5 it is only appropriate to refer to the the decision of the Apex Court in Bhabani Prasad Jena's case (supra). In the said decision the Apex Court held that DNA test being an extremely delicate and sensitive aspect, a direction for the said test could be given by courts only if a strong prima facie case and an eminent need is made out for such a course. The Apex Court further held that cautious and judicious approach is required, in such circumstances, considering the fact that such infringement on right to privacy would not only be prejudicial to the rights of the parties but could have a devastating effect on the child. The Apex Court referred to its earlier decision in Sharda's case (supra) wherein it was held that a matrimonial court got the power to order a person to undergo medical test and passing of such an order by the court would not violate the right to personal liberty under Article 21 of the Constitution of India and further that even in such circumstances court should exercise such power only if the applicant got a strong prima facie case and sufficient materials are before the court. After referring to Sharda's case (supra) and other authorities on the subject of DNA test the Apex Court held in Bhabani Prasad Jena's case thus:- “In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed, DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence At; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.” 10. The court has to consider diverse aspects including presumption under Section 112 of the Evidence At; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.” 10. A scanning of Ext.P5 would reveal that despite the exposition of law on the subject by the Apex Court as also by this Court on the aforesaid lines the Family Court took no effort to consider various relevant factors and questions before issuing the same. The fact that the child in question viz. Nimmy had attained majority even before Ext.P3 application was filed by the respondent herein was not taken note of though the said fact was specifically stated in Ext.P3. The fact that the said Nimmy is not a party in O.P.No.1063 of 2013 and in I.A.No.1554 of 2016 filed in the said O.P. was also not taken note of though all the aforesaid aspects are very much relevant for considering whether a direction for DNA test should be issued in the case on hand. In the light of the decision referred supra it can only be held that the Family Court which was bound to consider whether DNA test is eminently needed in the case on hand, had failed to consider such aspects in accordance with the settled position of law. A perusal of Ext.P5 would reveal that after making a bare statement 'considering the contention of the parties and other relevant materials before the court I am of the view that the applicants (sic. application) can be allowed in interest of Justice' the Family Court without due consideration passed the said order. 11. We have already stated that after the issuance of Ext.P5 order the petitioner herein has filed Ext.P6 affidavit before the Family Court in O.P.No.1063 of 2013 revealing the fact that the child in question viz., Nimmy is not willing to undergo DNA test and seeking for appropriate direction by the Court to her, in the matter. Ext.P7 order was passed subsequent to the filing of Ext.P6 affidavit. We have already extracted Ext.P7 order. Ext.P7 order was passed subsequent to the filing of Ext.P6 affidavit. We have already extracted Ext.P7 order. It would reveal that taking note of the fact that the petitioner herein and her daughter had failed to appear before the authorised officer of Rajeev Gandhi Centre for Biotechnology, Thiruvananthapuram, as directed, the Family Court closed I.A.No.1554 of 2016 after drawing adverse inference against the petitioner herein viz., the respondent therein. In the said circumstances, it is only apposite to refer again to the decision of this Court in Ramakrishnan's case (supra). In the said case, this Court virtually held that no adverse inference could be drawn in a case where the contesting parties are the husband and wife and not the children and further that when the children are major they could not be compelled to give blood sample in a civil proceeding where they were not parties. It was further held therein thus:- “If the paternity of the children, is the issue in the proceeding, DNA test may be the only safe method. It is not so in this case. In the case of the three major children, after the passage of a long time, the DNA test cannot be used as a short cut to establish infidelity that might have occurred decades ago. Even an order to undergo DNA test itself may its own effect on the reputation of the children in the society and it is also to be considered that they are major children born during the existence of a valid marriage, who are not party to the original proceeding. They are also not party in this proceeding.” In the case on hand, we have already taken note of the fact that O.P.No.1063 of 2013 is a petition for dissolution of marriage filed under Section 13(1)(i)(ia) and (ib) of the Hindu Marriage Act. They are also not party in this proceeding.” In the case on hand, we have already taken note of the fact that O.P.No.1063 of 2013 is a petition for dissolution of marriage filed under Section 13(1)(i)(ia) and (ib) of the Hindu Marriage Act. In the contextual situation, it is only relevant to refer to the aforesaid provisions under which the said original petition was filed and they read thus:- “13.Divorce (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or ....” 12. It can be found that in O.P.No.1063 of 2013 the paternity of Nimmy is not an issue directly raised as by seeking a specific declaration regarding her illegitimacy. That apart, she is not a party to the said proceedings. The respondent herein filed I.A.No.1554 of 2016 stating that during his cross examination in O.P.No.1063 of 2013 a question was put whether any step was taken to take recourse to scientific test for establishing the paternity of Nimmy. Thus, evidently, it is the said situation that made him to file Ext.P3 application seeking a direction to subject himself, the petitioner herein and also the said Nimmy to DNA test. Though the result of such a DNA test may have the effect of declaration of illegitimacy of the child or in other words, bastardizing her, the respondent herein had not chosen to make the child in question, who by that time became a major, as party to the said proceedings, more particularly in I.A.No.1554 of 2016 filed in O.P.No.1063 of 2013. The Family Court without considering such aspects drew an adverse inference and thereafter closed I.A.No.1554 of 2016. True that, such adverse inference, going by Ext.P7, is taken only against the respondent/petitioner herein. But, the question is what is the effect and impact of drawing of adverse inference against the petitioner herein in such circumstances ? The Family Court without considering such aspects drew an adverse inference and thereafter closed I.A.No.1554 of 2016. True that, such adverse inference, going by Ext.P7, is taken only against the respondent/petitioner herein. But, the question is what is the effect and impact of drawing of adverse inference against the petitioner herein in such circumstances ? Essentially, it would mean that the respondent herein is not the biological father of the child in question viz., Nimmy and further that the wife viz., the petitioner had committed infidelity. Will it not amount to declaring the illegitimacy of the child in question in its absence on the array of parties ? According to us, what is actually decided, of course, by drawing adverse inference is the legitimacy of the child in question knowing fully that she is not a party in the proceedings and no direction was issued to her to appear for DNA test. The upshot of the discussions made in the light of the factual position obtained in this case and with reference to the decisions referred supra, is that Exts.P5 and P7 cannot be sustained. 13. In the decision in Radhakrishnan's case (supra) the Division Bench considered the question whether the suit should be remanded. As a matter of fact, it was an appeal. On that question it was held:- “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.” Same is the position obtained in this case. True that the case on hand is not an appeal arising from a judgment and decree in a suit. But then, in view of Section 10 of the Family Courts Act and Rule 50 of the Family Courts (Kerala) Rules 1989 the Code of Civil Procedure shall apply to the suits and other civil proceedings before a Family Court. There is no case for the petitioner that she had taken up such a specific contention before the Family Court. In this context, it is also to be noted that all further proceedings in O.P.No.1063 of 2013 on the files of Family Court, Mavelikkara was stayed by this Court in this proceedings. In such circumstances, Exts.P5 and P7 are set aside and I.A.No.1554 of 2016 is restored into the file. In this context, it is also to be noted that all further proceedings in O.P.No.1063 of 2013 on the files of Family Court, Mavelikkara was stayed by this Court in this proceedings. In such circumstances, Exts.P5 and P7 are set aside and I.A.No.1554 of 2016 is restored into the file. The Family Court shall consider the same afresh and the parties will be at liberty to take all legal and factual contentions before the Family Court. The Family Court shall also bestow due consideration on the legal and factual position obtained in the case before taking a decision thereon, in accordance with law. After taking a decision in I.A.No.1554 of 2016 the Family Court shall proceed with consideration of O.P.No.1063 of 2013, in accordance with law. The Original Petition is disposed of as above.