Why should not husband deny his own child to not his own
Querist :
Anonymous
(Querist) 27 November 2011
This query is : Resolved
hus and wife not living together for 2 years.meanwhile wife procured somehow sperm and got it injected by artificial insemmination without her hus permission and a child is deleivered with disability.now husband deny that child to his own.
Guest
(Expert) 27 November 2011
Get the DNA test of the child and husband. If matched, he can be legally made to accept the reality.
Sailesh Kumar Shah
(Expert) 27 November 2011
@Shri PS Dhingra
Respected Sir,
I wish to know that how can DNA match in Test tube baby?
please answer.
Thanks
with Regards,
Querist :
Anonymous
(Querist) 27 November 2011
why should husband stand test of dna when sperm insemmination is without his permission and they r no longer living together.
Guest
(Expert) 27 November 2011
Dear Shailesh,
Sperms of a specific person won't have DNA of some different person. So, the baby taking shape out of those sperms would indicate DNA of that particular person only. There is no scope of absence of any DNA in a test tube baby.
Guest
(Expert) 27 November 2011
Dear querist,
Permission or no permission, living or not living together, you will have to take shelter of the court for issue of direction to your husband for undertaking a DNA test. Why do you think that he would become ready to get tested merely on your order or request, when he is not ready to own the child?
To prove your claim is your own responsibility. Naturally, your husband, if living separate for the last two years, would never accept the child to be his own unless you are able prove that biologically and legally. Why only your husband, even nobody would be ready to believe your statement whaen you are living in separation from him for the last 2 years.
V R SHROFF
(Expert) 27 November 2011
Any Child born out of wedlock and during the marriage relationship is a child of a father, and inherited Property, can claim Maintenance , and all.
It is immaterial, whether he is a biological father or not. DNA testing directly affect modesty of woman, will not be allowed.
Give me single citation or authority of HC, Supreme Court, where burden of father was shifted to mother?
Or child declared fatherless, they call it B B****rd*. What the School children call him at School?
Supreme Court ruled, why innocent child should suffer! So he is entitled to property of father too. Even if the child is illegal, they say the parents are illegal, not the child.
Law is very clear about who is a Legal father of a child.
Let father be in Kuwait for 5 years, having no access of wife, or child looks like neighbour, is irrelevant & immaterial at Law. There are lakhs of cases, known to Public, that the child is of someone, other than her husband.
That is why, only man is punished in adultery [IPC sec 497] & not woman, because by doing so , lifetime earning of a man goes to someone else's child !!
Father cannot escape the Legal liability, once he is a husband of a lady who deliver child
Querist :
Anonymous
(Querist) 27 November 2011
no body did understand my point.i said wife and hus r living altogether diferetn.why wud i acclaim paternity when i dont want a heir.
Raj Kumar Makkad
(Expert) 27 November 2011
I understand your problem. Dear Shroff! You should not be so aggressive. We should not take the matters as if the same belong to us. Let we discuss a peculiar case with each other. Our argument should also be in a polite and humble manner.
Raj Kumar Makkad
(Expert) 27 November 2011
The Delhi High Court in Shri Rohit Shekhar vs Shri Narayan Dutt Tiwari & Anr., has examined the concept of DNA testing and the law pertaining to the same. Justice S. Ravindra Bhat has culled out the prevalent laws on the subject and examined them in the light of international decisions and legislations. The relevant extracts from the Judgment are reproduced hereinbelow;
Position in India regarding DNA tests
18. Scientific evidence such as the results of Deoxyribonucleic Acid (DNA) tests are under Indian law to be evidence of ones paternity/lineage in that these tests can accurately determine whether or not the persons are biologically related. Such tests, however, have little relevance in a proceeding to determining the legitimacy of a child. In the case of Banarsi Dass (supra), it was held:
"13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Evidence Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrefutable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above."
19. The above case dealt with a situation where the husband was resisting parenthood of the child. The issue here is in the context of a situation where the child seeks a declaration to the effect of ascertaining his paternity, even at the cost of bastardizing himself. The Court emphasized that DNA test is not to be directed, as a matter of routine and only in deserving cases could such a direction can be given. On this point, the Supreme Court, in the case of Goutam Kundu (supra) observed,
"The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the consideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do. The Court exercises protective jurisdiction on behalf of an infant."
20. This Court notes that the above decisions are authorities in matters where it is the father who is resisting parentage at the cost of bastardizing the child. The same rationale does not however, apply, in situations where the child, who, on attaining adulthood , moves the Court for a declaration to determine his/her parentage, as in this case. There would then be no question of protective jurisdiction of the Court since the declaration sought is on his/her behalf about the true paternity, as opposed to the legitimacy ordained by law. It is true that courts have not come across an occasion to draw this distinction since invariably the interests of the child has demanded () that its legitimacy should not be jeopardized. The issue of applicability of Section 112 has to be seen from a different trajectory than that in the decided cases; no decision, as yet, with a comparable fact-situation where the offspring of parents, born during the subsistence of their marriage, sought a paternity declaration that another man (and not his mothers husband) was his father, is discernable. Therefore, where it can be established that the husband is not the father of the child, through scientific tests conducted upon them voluntarily, the presumption of Section112 can stand rebutted, prima facie. On this presumption, it was observed by the Supreme Court in Goutam Kundu (supra)
"It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the bases of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman."
Raj Kumar Makkad
(Expert) 27 November 2011
Section 14 of the Family Courts Act, 1984 enacts if any evidence which would otherwise not be relevant/admissible under the Evidence Act, assists the Court, may be both relevant and admissible in such proceedings. Therefore, while the presumption under Section 112 of the Evidence Act renders the results of such tests futile as to the legitimacy of the child, the relevance of such tests cannot be disregarded, in regard to matters and disputes covered by the Family Courts Act, and triable under it. Section 7 of the Act provides for jurisdiction of the Court in this respect:
"7. Jurisdiction. - (1) Subject to the other provisions of this Act, a Family Court shall-
Explanation -The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely:
a suit or proceeding between the parties to a marriage for decree of a nullity marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
a suit or proceeding for a declaration as to the legitimacy of any person;
a suit or proceeding for maintenance; a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
Raj Kumar Makkad
(Expert) 27 November 2011
The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court's own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman... If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a child pursuant to the court
Shonee Kapoor
(Expert) 28 November 2011
Injecting sperms can not be done just like that. There is a complete medical procedure for artificial insemenization.
DNA test can be asked only if there is a prima facie strong proof about dispute of paternity.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
M/s. Y-not legal services
(Expert) 27 November 2011
