The Nagpur Bench of the Bombay High Court has held that paternity test of a child can be ordered only in exceptional circumstances Court dismisses a father's plea seeking paternity test of the child born to his wife. The Court was hearing a matter in which a child claiming to be the son of the petitioner had sought maintenance under Section 125 Cr.P.C. The child was born in 2007. The child stated that his mother was the married wife of the petitioner. The child claimed that his mother and the petitioner were married in 2005.But due to lack of coordination and estrangement between the husband and wife, his mother had left the house of the petitioner.The petitioner moved the Magistrate's Court stating that the mother of the child was not his wife and that he had no sexual relationship with the mother of the child.She opposed the maintenance application filed by the child and filed an application in the Magistrate's Court seeking paternity test of the child. The child produced several evidences in the court to establish that his mother is the legal wife of the petitioner.Proceeding on the maintenance application, the Magistrate recorded the evidence of both the parties and directed to conduct paternity test of the child.The child challenged the order of the Magistrate in the Sessions Court. The Sessions Court set aside the order of the Magistrate.The petitioner challenged in the High Court the order quashing the order of paternity test by the sessions court. A bench of Justice G.S. Sanap , while hearing the matter, observed that the father of the child was doing a gainful employment but was seeking paternity test to evade his obligation to pay maintenance to the child.The judge said that in view of the possible wide-ranging consequences, the court should in every possible way thwart such an attempt at the outset,An order directing paternity test in such cases should be need based and should be given only in exceptional cases. Children have the right that their legitimacy should not be questioned in the courts of law.Paternity test of the child cannot be ordered on the ground that the mother who knows the truth about the paternity should come forward and ask for the paternity test of the child and there should be no hesitation in getting the child's paternity test done.The court said that in such a case the test is of the child and not of the mother.Therefore, in matters as serious as paternity testing, the prior requirement of such a test should be made clear in order to decide.Courts should take into account the future of children before passing any order regarding paternity test. Court said that children are helpless they have no control over what happens before they are born.If the child fails the paternity test, the child has to face painful consequences for life. The court said that the marriage of the petitioner and the mother of the child and the birth of the child is registered in accordance with law.Enter the name of the petitioner as the name of the father of the child in the register of births.Even while cross-examination the petitioner had accepted that the mother of the child is his wife.But he refused to accept the child as his son though he has not accused his wife of adultery either.. The court said that the petitioner has accepted that the wife was living with him after the marriage in 2005.Therefore prima facie it is sufficient to conclude that the petitioner's application for paternity test is not genuine.Presumption under Section 112 of the Evidence Act that the petitioner is the father of the child born to the wife within the wedlock unless the petitioner proves that he had no access to his wife. The court noted that the petitioner has failed to rebut this presumption nor has he produced any evidence to support the need for a paternity test.
