A and B were married in 2000. They were living happily and had a son C in 2002. ‘A’ the husband started suspecting that B the wife was having an extramarital affair with D and that child C is not his son. He filed a petition for divorce… Is A liable to pay the maintenance of C? Decide with reasons.

Question: A and B were married in 2000. They were living happily and had a son C in 2002. ‘A’ the husband started suspecting that B the wife was having an extramarital affair with D and that child C is not his son. He filed a petition for divorce against B in 2004 on the ground of adultery and cruelty and got a decree of divorce.

When B filed for maintenance for C, A declined that C is his son and asked for a DNA test to be done on C to determine his paternity. The test was done and the result showed that C was not the son of A. Is A liable to pay the maintenance of C? Decide with reasons. [D.J.S. 2006]

Find the answer to the mains question only on Legal Bites. [A and B were married in 2000. They were living happily and had a son C in 2002. ‘A’ the husband started suspecting that B the wife was having an extramarital affair with D and that child C is not his son. He filed a petition for divorce… Is A liable to pay the maintenance of C? Decide with reasons.]

Answer

The term “legitimacy” employed under Section 112 of the Evidence Act refers to and determines the legal status of birth, i.e. whether legitimate or illegitimate. To put it differently, the legitimacy of a child is its right to be officially or legally as such.

In the leading case of Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and Another (2014 KHC 4005), the court held that: The legal presumption of ‘legitimacy’ under Section 112 of the Evidence Act does not bar the conduct of a DNA test to prove the disputed paternity of a child. Since the illegitimate child is also entitled to get maintenance allowance under Section 125(1) (b) of the Cr.P.C., legitimacy pales to insignificance and the fact in issue is paternity only. Moreover, when there is a scientifically accurate, reliable and approved test is available to prove the paternity of a child beyond doubt, no reliance can be placed on the presumptions.

Following the decisions of Apex Court, the Crl. M.P. No.102/2014 In M.C. … v. Teeku Dutta [(2005) 4 SCC] hasten to hold that the direction to a person, from whom maintenance is claimed, to submit himself for a DNA test is legally permissible, in a maintenance claim under Section 125 of the Cr.P.C., in the cases where such a test is imminently needed to prove the paternity of the child which is denied by the alleged father, notwithstanding the presumption under Section 112 of the Indian Evidence Act.

The presumption under Section 112 of the Evidence Act does not bar DNA tests to prove the fatherhood of a child. But, it cannot be ordered as a routine procedure and the facts and circumstances of the case must be so conducive to rely on such a scientific test only.

Whereas, paternity is the state or fact of being the father of a particular child. According to Section 125(1)(b) of the Cr.P.C., the legitimate or illegitimate minor child, whether married or not, unable to maintain itself is entitled to get maintenance allowance from his or her father, if the father having sufficient means neglects or refuses to maintain that child. There, the question is whether the child has been begotten in sexual intercourse with the person from whom maintenance is claimed. An illegitimate child is also entitled to get maintenance from his father.

So, the legitimacy of birth is totally irrelevant and insignificant while considering the right of the child to get maintenance from his father. In short, legitimacy and paternity are different and distinct. To find out the true fatherhood of a child, the legal presumption as to the legitimacy under Section 112 of the Evidence Act would not bar a scientifically accurate and approved test, if the facts and circumstances of the case tend to make such an enquiry imminently needed.

When the fatherhood of a child can be determined accurately without doubt by the DNA test, there is no need to ascribe the fatherhood to an innocent person on presumption.

Since legitimacy and paternity are distinct and different and working under different spheres in a different perspective, section 125 of the Code of Criminal Procedure entitles an illegitimate minor child also to seek maintenance. The emphasis is on paternity and not on legitimacy, in a proceeding under Section 125 brought by an illegitimate child.

Therefore, in the present case at hand when the DNA test was done and the result showed that C was not the son of A, there is evidence against the paternity of A being father of the child C. Hence, A is not liable to pay the maintenance of C under section 125 CrPC.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X