Paternity proof in partition suit
Iman
(Querist) 23 March 2013
This query is : Resolved
we are hindus. My father died in 1980. my father had married my mother without divorcing his first wife. there is no proof abt their marriage.
my father left behind land and other properties in the village where his first wife and my step brothers reside. they know us and we know them.
now recently when we filed for partition suit, they said in court that their father never married twice and they dont know us.
So now we will have to prove that we are our fathers children.
this is the proof we have right now.
1)All my legal documents such as school documents, passport, domicile certificate, birth certificate has my fathers name on it. even my mothers passport, voters card,pan card etc has my fathers name and last name.
2)we have 2-3 old photos of me and my father and also one photo with me, father and mother together.
besides this we have no other documentary proof.
Is the above proof enough to prove that im my fathers son?
although our other relatives know us they dont want to interfere and dont want to be witness in court.
what other proof will the court require?
Can the court order dna testing with my step brothers to determine we have the same father?
Thanks in advance.
Advocate M.Bhadra
(Expert) 23 March 2013
You have sufficient documentary proof now you have to corroborate the witnesses who have knowledge the second marriage of your father.
All the children of the deceased Hindu borne by the first wife or the second wife shall have equal right in his property by virtue of this section as well section 16 of the Hindu Marriage Act which gives legitimacy to the children born from marriage declared null and void or annulled by a decree of nullity ,read this provision too:-
Legitimacy of children of void and voidable, marriages.- Where a decree of nullity is granted in respect of any marriage under section 11 or section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity.
Court -Supreme Court of India
Brief -Section 16(3) of the Hindu Marriage Act as amended, does not impose any restriction on the property right of Illegitimate Child except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral.
Citation - REVANASIDDAPPA & ANOTHER VERSUS MALLIKARJUN & OTHERS
Devajyoti Barman
(Expert) 24 March 2013
If there is no witness forthcoming or there is no documentary evidence then DNA test would be the only option.
R.K Nanda
(Expert) 24 March 2013
no more to add.
