Father Cannot Avoid Paying Maintenance To Child By Seeking Frivolous Paternity Test: Bombay High Court

Justice GA Sanap of the Nagpur bench dismissed a man’s plea seeking paternity test of a child born during cohabitation with his wife. The man did not allege infidelity on his wife’s part.

“In this case, the father, who is gainfully employed, is trying to avoid his liability to pay the maintenance to the unfortunate child. In order to deny the right to get maintenance, he has been asking the son to undergo the DNA test. In my view, keeping in mind the cascading consequences that could ensue, the Court should in every possible manner thwart such an attempt at the very inception. The order directing the DNA test in such matters must be need-based and has to be passed in an exceptional case”, the court held.

The court held that children have the right not to have their paternity questioned frivolously. The child is the one on test, not the mother, the court said adding that absolute need and necessity for DNA test must be made out.

“The children have right not to have the legitimacy questioned frivolously in Courts of law. The DNA test cannot be ordered on the assumption that the mother, who equally knows the truth about the paternity, should not hesitate for a minute to come forward and express her willingness for the DNA test. It is to be noted that, in such a matter, the child is on test and not the mother. Therefore, in such cases, the absolute need and necessity for such test, to adjudicate upon a serious issue, must be made out”, the court held.

The child claimed to be the petitioner’s son and sought maintenance under section 125 of the CrPC. The child was born in 2007 and claimed that his mother is petitioner’s legally wedded wife. He claimed that his mother married the petitioner in 2005 but due to discord in marriage, left the house with him in 2009.

The petitioner opposed the maintenance application before the magistrate and denied that the child’s mother is his wife. He claimed that he had no sexual relationship with the mother. He also filed an application before the magistrate seeking DNA test of the child.

The child submitted documents showing that his mother is petitioner’s wife. After a round of litigation till the High Court, in which the High Court directed the magistrate to first decide the maintenance application, the magistrate recorded evidence of the parties and directed the child to undergo DNA test. The Sessions Court set aside the magistrate’s order. Thus, the petitioner approached the High Court.

Section 112 of the Indian Evidence Act provides that any child born to wife inside wedlock is presumed to be the husband’s child unless the husband proves that he had no access to his wife.

The High Court relied on Supreme Court judgment in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia and said that the cascading effect of the DNA test on the future of the child and the consequence of the DNA results on child cannot be ignored while deciding the application for DNA test.

The High Court reiterated that the interest of the child should be the focus of the court. The child is vulnerable and has no control over what happens before his birth, the court added. If the paternity test is found negative, the child has to face traumatizing consequences throughout his life, the court said.

The court noted that the petitioner’s marriage with the child's mother and the birth of the child is registered as per law. In the birth register, petitioner is named the child's father. Further, in his cross examination, the petitioner admitted that the child's mother is his wife but did not accept the child as his son.

From the evidence, the marriage between the petitioner and the child's mother was prima facie proved and hence the presumption under section 112 is been established, the court said.

Petitioner did not deny that his wife stayed with him from marriage till 2009. He also did not allege adultery on the part of his wife. The court held that this is prima facie sufficient to conclude that the petitioner’s application for DNA test is not genuine.

The court concluded that the petitioner has not shown any material to insist for DNA report and rebut the presumption.

Case no. – Criminal Writ Petition No. 66 of 2022

Case Title – X v. Y

Citation: 2023 LiveLaw (Bom) 178