@ Author
1. NO
Reasoning: Where is the question of cruelty arise here !
One can only have sentiments / emotions on vegetative state (if disability to be at par here is what I mean) of this child thats it is there before us but then Court does not deliver Justice on sentiments and emotions does it!. I also know cruelty definition is so wide anything and everything could go into the black hole.
Now, suppose if a child is born healthy to non contesting spouse off in the society they keep (means away form courts they are) and tomorrow this newborn is diagnosed to have thalassaemia (on rating scale this genetic disease is more expensive to live with and more life threatening compared to disability status of a child mind it) so will que. arise on cruelty on child and shall the spouse approach court on this ground !
Again NO.
What matters in authors query is that two adult persons on other sides of fence of a child are responsible for parting their inheritance share (if any), maintenance for upkeep of this special child, providing special needs for disable persons growth etc. That is all and why rake in question of paternity read with cruelty when the marriage is not dissolved ! It is extra genius way to allege cruelty by wife upon husband I mean :-)
Any sensitive Court will ensure, the moment a case on such hypothetical question comes up, simply to treat this child as a PERSON and not as a OBJECT of tussle between two spouse (PERIOD).
Stealing not stealing sperm are all ir-relevant here on the lines of our grand dame Kunti's times. Who knows where husband was jacking off to boost his manhood and who were present watchign such world records there with ulterior motive in favour of wife and literally went on knees to collect the life's nectar and passed few of his precious pearls to wife in a nitrogen sealed container within 1 hour (yup that is mortality rate of naughty ejaculated sperms to bring form of life in case queriest does not know that) further in case this que. touches height of someone’s anti-thesis.
Further allegations of adultry on wife if husband files on simple this point (that during separation she gave birth to a child) is also becomes irrelevant (all wife has to say is that they were incontact to see possibility of some reconciliation and now how husband can prove he was not !). The fact that court sees here is that two adults in a relationship of marriage as husband and wife are admitting and or denying respectively a child's very existence first with their suit and rejoinders read with some counter claims and what will happen here is that the Court will be more inclined to settle the issue by providing first maint. and sue motto not disturbing the child's very existence with certificate guardian. Bingo the damage to husbands reputation is all done with now ! Spend upteen years in Courts all the way to SC and show me one adultery proved case to reverse above reasoning if any J
Also DNA test if prayed it will be thrown out in such cases recent eg. before us is ND Tiwari’s case on similar thoughts I recall J The beauty of this que. is that mother rises to higher pedestal and same shall be protected by Law for a simple reason the relationship of husband and wife is not subsisting before eyes of law and such births are treated as father (present case husband) to be natural father and mother can’t go to neighborhood to commit such acts of omission and commissions so be careful when such allegations have to be resorted to in Courts and moreover when proof by way of a child (health condition of child I am not touching again here) is very much before us.
BTW this query reminds me of Kunti’s days where she was given boon by Durvasa where she can summon any deva and have a child by him but these are times of metro wives and or it also reminds us of some of the old good days moot questions in our Law schools that we were solving spending sleepless nites in our dorms believing ourselves to be the only CJI with our hypothesis J
Today times are of doing things openly as 52 laws are on your side and gone are days of (stealthy) Kunti and I doubt any time pass women writers even recalling who Kunti who .......!.