Noting that a child born out of wedlock of the parties is presumed to be legitimate and that the burden lies on the shoulders of the husband to prove it otherwise, the Madras High Court dismissed an appeal moved by a husband to subject his wife to a DNA test to decide the paternity of a child born to them.
Justice M. Venugopal refused to quash an order of the Judicial Magistrate, Cheyyar, rejecting the plea moved by Prakash who claimed that the child bornto his wife was not his.
He also claimed that he never had any sexual relationship with her, before or after marriage.
Threatened
According to the petitioner, he was threatened by his spouse’s family and was compelled to marry her on May 16, 2008 in a temple at Cheyyar.
The marriage was also registered at the Cheyyar Sub-Registrar's office. After six months of marriage, his spouse gave birth to a girl child on November 22.
‘Never consummated’
Alleging that the marriage was never consummated, the petitioner approached the Judicial Magistrate in Cheyyar to subject his wife to DNA test to decide the paternity of the child.
The magistrate rejected his plea observing that both parties had admitted to marriage, and since the child was born to them, one had to conclude that the child was born only during the subsistence of the marriage relationship as per the provisions of the Indian Evidence Act.
Assailing the order, the petitioner moved the present appeal in the High Court.
When the plea came up for hearing, the judge said unless the husband is able to establish his version satisfactorily and conclusively, the presumption under the Indian Evidence Act shall prevail and dismissed his plea.
