Monday, December 14, 2015

Child born during valid marriage is presumed to be legitimate: HC

20-Yr Fight Ends As Man Told To Pay Maintenance
A child born during the existence of a valid marriage between a couple is to be presumed to be a legitimate child of the man, the Bombay high court has ruled in an important order. This presumption can be dislodged only by strong proof like a DNA test of evidence that the couple did not have access to each other. The court's order has set to rest a two-decade-old legal fight between a couple, after a Pune resident had denied paternity of his child and opposed payment of maintenance to his wife, alleging that she had committed adultery .
“The law presumes strongly in favour of legitimacy of offspring. The principle is that on the grounds of public policy, it is undesirable to enquire into the paternity of a child whose parents have access to each other,“ said Justice Shalini Phansalkar-Joshi.
“[As per the law] When any person is born during the continuance of a valid marriage between his mother and any man and within 280 days after its dissolution, the mother remaining unmarried, then the said fact is conclusive proof that he is a legitimate son of the man. Only exception provided to this conclusi ve presumption is that, the parties to the marriage had no access to each other at any time when the child could have been born,“ the judge said.
The court added that even if the couple are staying separately, the presumption would be valid. `Access' and `non-access' mean the existence or non-existence of opportunities of sexual intercourse, it does not mean actual co-habitation,“ added the judge.
Rahul Patil and Seema had got married in 1993. Seema was forced to go live with her parents, following harassment at her marital home in December 1993. A year later, following mediation, Seema went back to live with her husband. Seema was pregnant when she returned and delivered a child in June 1995. Rahul claimed that the child was conceived when they were living separately and alleged that Seema had an illicit affair.
A trial court in 1996 directed Rahul to pay maintenance to his wife and child, which he challenged. A sessions court ruled in Rahul's favour in 2001, which she challenged in HC.
The HC pointed out that though the couple was living separately , there was no proof that they did not have access to each other or that Rahul had not visited Seema at her parents' house. The court also said that Rahul had not asked for a DNA paternity test to prove his allegations and ordered him to pay maintenance.
(Couple's name changed to protect identity)

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