Bombay High Court: In a petition filed by the husband challenging on the ground of legitimacy of the child born out of wedlock, the order passed by the Additional Sessions Judge, Beed dated 30-11-2016 thereby dismissing the revision application challenging the judgment and order passed by the Judicial Magistrate, First Class, Ashti wherein the Judicial Magistrate had granted maintenance under section 125 of Criminal Procedure Code (CrPC) to respondent 1 and 2 i.e., wife and daughter at the rate of Rs.2000/- and Rs.1000/- per month respectively, Kishore C Sant, J., upheld the maintainence granted and further held that both the courts have rightly observed that no case is made out by the husband to show that for the period of 280 days before the delivery of the child, there was no access to him with his wife (respondent 1).
It is the case of the wife that the husband did not maintain her well and driven her out of the house. She delivered a daughter, but the main allegation by the husband for not being liable to pay maintenance is that the girl child of the respondent-wife is not from him, and he is not the biological father of the child. He is contesting the present petition on the same ground.
The Court noted that it needs to be seen that since the beginning it is the case of the husband that child (Respondent 2) is not his child, however, the Trial Court while deciding the application considered the presumption under section 112 of the Evidence Act. Thus, before the Trial Court, it was defence of the husband that the child is not born to him.
The Court further noted that the petitioner has justified why he has not filed an application for the DNA test by relying upon the answer given by the respondent-wife that she is not ready to go for the DNA test. Thus, a mere submission that the question was asked in cross-examination to the wife whether she is ready to go for the DNA test, where she has answered that she is not ready, would not be sufficient to draw an adverse inference against the wife.
The Court recorded that the entire argument that respondent 2 is not his biological daughter cannot be accepted, firstly, there is no separate application filed either in the Trial Court or before the Revisional Court for DNA Test, and, secondly, after recording the evidence and after hearing the parties, the Judicial Magistrate said that the husband has failed to prove that the wife lived an adulterous life.
The Court upheld the orders regarding maintenance and held that no case is made out by the husband to show that for the period of 280 days before the delivery of child, there was no access to him with his wife respondent 1.
[Namdeo v. Seema, Divorced wife of Namdeo Giri, 2023 SCC OnLine Bom 73, decided on 07-01-2023]
Advocates who appeared in this case :
Mr.Ravindra V. Gore, Advocate, for the Petitioner;
Mr.Sandip R. Andhale, Advocate, for the Respondents.
*Arunima Bose, Editorial Assistant has reported this brief.