Anony mous (NA) 15 April 2013

Child custody

I posted some issues I face under different topic. This is regarding another man, whom I met at a centre.

This person is married and has a son aged 3 years. He has filed divorce case over his wife on grounds of infedility. Now the problem is that his wife has told him that, the kid's biological father is some one else and not this man. But in all records, DOB certificate, school, ration card, this man's name is given as father. He doesn't whether the wife is telling truth or just playing around. They have been living together for more than 4 years and have filed petition just few months back. This has not been told in court but during some quarrel outside court.

This man wants to know , if the above is proved to be true through DNA, will he be granted custody of the child. No matter what, whether it is biological child or not, he wants the custody. In fact, this man is not even ready for DNA test. This guy is preparing to withdraw divorce petition, if the wife plans to submit such statement in open court. He feels that, even if wife's statement is proved false in DNA, the society would always his child otherwise

I told him, that his wife is doing this out of frusturation. Even if it is true, he will be considered as father as he and wife were cohabiting at the time of delivery.

I am not an advocate, but pl clarify. In above case, if the child is not biological child, can still father still be allowed custody or access.

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Anony mous (NA) 15 April 2013

The man does not want to do a DNA.

It is his wife who says, he is not biological father and forcibly denying kid's access to this man. That too, she told outside the court gate and not inside the court. Though she may not have the guts to tell so inside court, this man fears what if she files a petition saying that kid is not a biological child of this man and hence objects custody / access to this man. He doesn't want such things to happen.

To take custody of the child, what if the wife, files a petition for DNA test. In such case, this man plans either to withdraw suit or forsake custody rights. He doesn't want DNA test at any cost. What ever be the outcome, he feels it would attach stigma to the child

Tajobsindia (Senior Partner ) 15 April 2013

1. In presented brief, respondent (wife) cannot put 'condition' in Court to conduct DNA test. If she does that same can be dismissed as this isa case of allegations of petitioner (husband) alleging wife's adultery not other way round.

2. The respondent (wife) is playing with super size emotions of petitioner (husband) inside or outside Court. We advice him never to withdraw such allegations based suit matters unless he himself is not sure on quality of evidences then it is other matter but on account of such oral allegations which are not material records of Court, we will never suggest him to withdraw - grow emotionally weaker.

3. The petitioner (husband) should claim custody r/w visitation rights irrespective child is legitimate or illegitimate PERIOD.

4. Petitioner (husband) should not withdraw divorce suit matter on mere outside emotional game (allegation) of respondent (wife). Least to least if the allegations of adultery as alleged in suit matter he is not able to prove the case will get dismissed that is all will happen. But, meanwhile if he gets visitation of child atleast he makes a breakthrough with child graduating later to full custody.

5. Few weeks back I placed ref. Citation of Court where DNA test was not allowed, refer to it irrespective whose side you are placing this query before us.

6. Flip all above by one wrong order of concerned Court if DNA test is allowed the immediate action petitioning (husband) should do are two; file in same Court for allowing amendment of his divorce suit matter where in he prays Court to allow him to add one para relating to DNA test which is ‘cruelty’ and it is proved the moment DNA test is allowed and second act he should do is to approach DB of State’s HC (assuming current matter is before ld. Judge of a Family Court) to seek quash of Order of Family Court Judge citing ‘cruelty to child r/w stigma’ it attracts and which cannot be washed away. By acting (i.e. if it happens) he has made his case much stronger given to understand ‘infidelity’ of spouse requires ‘silver quality’ proofs and many such suit matters crashes on the go and then such ‘stigma’ results due to no faults of minors.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 15 April 2013

Dear Querist

if there is any question related to legitimacy of illegitemacy of the child as per hindu law

Legitimacy of children of void and voidable marriages. Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws.

1. Subs. by Act (68 of 1976. s. 9 for certain words.

2. Proviso- omitted by S. 10, ibid.

3. Subs. by s. 11, ibid for s. 16.

Amendment Act, 1976 , (68 of 1976 .) and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under 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 at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub- section (1) or sub- section (2) shall be construed as conferring upon any child of a marriage which is null and void or which Is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.]

because the child is legitimate, the court may not pass an order for DNA test or allow that type of the application.

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