The Nagpur Bench of Bombay High Court recently ruled that children have a right not to have their legitimacy questioned frivolously in courts of law and that a DNA test of a child can only be ordered in an exceptional circumstances.
A single judge bench of Justice GA Sanap while dismissing the plea to allow a paternity test filed by a man observed that in this scenario, the father, who is employed, is attempting to escape his obligation to pay the child’s maintenance. He has been requesting that the son endure a DNA test in order 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 case when the paternity test of DNA 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 case, the child, the 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 was born in 2007. In 2009, she left 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 5,000 per month.
The petitioner opposed the maintenance application before the Magistrate and denied the fact that child’s mother is his wife. He also claimed that he did not have a sexual connection with the mother.
The child submitted documents to prove the marriage between his mother and the petitioner. The matter went 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 in 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. The 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 a 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 apex court in the matter of Aparna Ajinkya Firodia v. Ajinkya Arun Firodia wherein the apex court considered sections 4,112 and 114 of Evidence act and observed that this is a very delicate issue.
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