The Madras High Court has refused to quash a Judicial Magistrate's order rejecting a plea from a husband to subject his wife to DNA test to decide the paternity of a child born to them.
Prakash, husband of the woman alleged that the child, born within six months from their marriage, was not his.
He also claimed that he never had any sexual relationship with his wife, before and after the marriage.
Prakash was married to the woman at a temple in Cheyyar Tiruvannamalai district on May 16, 2008. It was also registered at the Cheyyar Sub-Registrar's office in the same year.
A girl child was born to them after six months of the marriage following which he moved the lower court to subject his wife to DNA test to decide the paternity of the child.
Observing that the marriage was conducted with the Consent of both the sides, and when the marriage relationship subsists during the period of relationship, if a child was born out of the wedlock, then one has to come to the conclusion that the child was born only during the subsistence of the marriage relationship as per Sec 112 of the Indian Evidence Act, the lower court rejected his plea in October 2014.
Upholding the lower court order, Justice Venugopal in a recent order observed that unless the husband is able to establish non-access satisfactorily and conclusively, the presumption under Sec 112 of the IE of the Marriages Act shall prevail.
The word "access means no more than opportunity of intercourse", the judge said.
The judge also said that Sec 112 of the IE Act refers to the "point of time of birth" as a deciding factor and not to the time of conception.
"Whenever a child is born in a lawful wedlock, there is a question of presumption of legitimacy unless it is proved by very reliable evidence such as divorce, long and continued separation or illness."
The judge said the presumption cannot be displaced by mere probabilities or any circumstance creating doubt.
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