In a landmark case, Mumbai High Court held that a child born after 280 days or nine months of the dissolution of a legal marriage is not illegitimate.
The birth of a child within the timeframe of a valid marriage is proof that the child is legitimate, a division bench of Justice Sadhna Jadhav ruled.
Justice Jadhav made this observation while rejecting Sangli resident Ishwar Patil’s application. Patil had filed an application casting aspersions on the legitimacy of his 16-year-old daughter’s birth.
In his plea, Patil had alleged that he suspected that his daughter was born out of an illicit affair between his wife and her cousin.
“The question of the birth of a child due to adulterous behavior is nothing but void, vague and a baseless allegation. The learned Civil Judge had rightly rejected the prayer for DNA test,” Justice Jadhav observed.
“In the present case, there is no good ground to hold that the parties had no access to each other, at least, till June 1997,” she added.
Patil, a merchant navy sailor had married Seema in 1994 and a daughter was born to them in 1997, but Patil started questioning her paternity at least eight years later in 2004. That too, when his wife Meera filed a cruelty suit and an application claiming maintenance for herself and her daughter.
Patil countered this by questioning the paternity and alleged that Meera’s cousin Ajit Bhosle was the biological father of the child.
Patil initially filed a civil suit in Sangli seeking a declaration that he is not the biological father. Since the civil court rejected his plea, he approached the high court.
In his petition before Mumbai high court, Patil alleged that he was mostly away from India for different periods between 1996 and 1997 and the daughter was born in 1997.
In her order, Justice Jadhav observed that Patil admitted during cross-examination that he had that he had no direct evidence linking his wife to the other man. He claimed to have learned of the alleged illicit relationship from his wife.
Rejecting Patil’s plea for a DNA paternity test, the High Court cited Supreme Court judgments asking courts to exercise discretion and order medical tests to establish paternity only in cases where a strong prima facie case is made out.
“The birth of a child during continuance of a valid marriage or even within 280 days after its dissolution is conclusive proof that child was legitimate unless the husband and wife had no access to each other at any time when conception took place,” Justice Jadhav said.
(Names have been changed to protect the identities)
