[News18] Father Cannot Avoid His Liability To Pay Maintenance To Unfortunate Child: Bombay High Court Denies Plea For Paternity Test

The Nagpur Bench of the Bombay High Court recently ruled that children have the right not to have their legitimacy questioned frivolously in Courts of law. A DNA test of a child can only be ordered in exceptional circumstances.

The single judge bench of Justice G.A.Sanap while dismissing the plea for allowing a paternity test filed by a man observed that the children have the right not to have the legitimacy questioned frivolously in Courts of law, in this scenario the father, who is employed, is attempting to escape his obligation to pay the unfortunate child's maintenance. He has been requesting that the son endure a DNA test to deny the right to maintenance.

“We have to visualize the cascading effect of such a test on the future of the child, they are vulnerable and innocent, in the case when the paternity test of DNA is found negative then the child has to face the traumatising consequences throughout his life. We have to take care of the interest of the child,” Justice Sanap mentioned.

In the present case, the child herein applicant through his mother claimed to be the petitioner's son and demanded maintenance under CrPC section 125. It was claimed that his mother is the petitioner's legally wedded wife and they got married in the year 2005 and he was born in 2007. Later on, in 2009, she left the home with him due to marital discord which started due to the petitioner’s extra-marital affairs.  Thus, the child claimed the maintenance of Rs. 5000/- per month.

The petitioner opposed the maintenance application before the Magistrate and denied the fact that the child’s mother is his wife. He also claimed that he did not have a sexual connection with the mother. He also requested a DNA test for the child before the magistrate.

The child submitted documents to prove the marriage between his mother and the petitioner. The matter goes to the High Court, where the High Court instructed the magistrate to first decide the maintenance application, the magistrate recorded evidence from the parties and ordered the child to undergo a DNA test. The Sessions Court overturned the magistrate's decision. As a result, the petitioner filed a writ petition before this present bench.

According to Section 112 of the Indian Evidence Act, any child born to a wife in a marriage is presumed to be the husband's child unless the husband proves that he had no access to his wife.

“Where the husband and wife have co-habited together and no impotency is proved, the child born from their wedlock is conclusively presumed to be legitimate,” the court observed.

The bench observed that the petitioner's marriage to the child's mother and the child's birth were both legally registered. The petitioner is listed as the child's father in the birth record. In addition, during his cross-examination, the petitioner admitted that the child's mother is his wife but refused to recognise the child as his son. Petitioner did not deny that his wife remained with him from the time they married until 2009. He also did not accuse his wife of infidelity. Thus there is prima facie evidence that the petitioner's request for a DNA test is not genuine.

Furthermore, according to the evidence, the petitioner's marriage to the child's mother was prima facie demonstrated, and thus the presumption under Section 112 was established, the court said.

Justice Sanap also relied on the view of the apex court in the matter of Aparna Ajinkya Firodia v. Ajinkya Arun Firodia wherein the apex court considered sections 4,112 and 114 of the Evidence act and observed that this is a very delicate issue and if we allow DNA testing that may have a cascading effect on the child which can ruin his future

Accordingly, the court dismissed the petition for DNA testing filed by the man.

Case Title: A vs. B

Statute: Sec 112 of Evidence act, Article 226 of the Indian Constitution