The Supreme Court of India.
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New Delhi: The Supreme Court has decided to consider whether a man would not be liable to provide maintenance to a child born during the subsistence of marriage in view of the DNA report declaring him not to be the biological father.
A plea was made before the top court by a woman who was aggrieved with the Delhi High Court's order of October 17, 2023 by which her child was denied maintenance.
The HC had said, "In face of DNA report existing on record, the man herein cannot be held liable to make payment of maintenance to the child, even though the child was born during the subsistence of marriage between the petitioner (woman) and the man. In this regard, the law is also settled that the biological father is liable to maintain his child."
Acting on a special leave petition by the woman, a bench of Justices Hrishikesh Roy and Sanjay Karol on December 4 issued notice to the man, seeking his response within four weeks.
The woman's counsel said she worked as a cook at the man's house and lived together prior to the marriage and therefore the fact that the child was born within a few months after the marriage, can have no bearing in the matter.
The woman's counsel relied upon on the Supreme Court's judgment in 'Aparna Ajinkiya Firodia vs Ajinkya Arun Firodia' (2023). The Supreme Court had then held that if a man and woman before marriage lived together during the time of conception but the DNA test revealed that child was not born to the husband, unless there is proof of no access by the man to the lady, the DNA test would not be conclusive, to deny maintenance for the child.
The man, for his part, claimed he was a minor at the time of marriage. The question of validity of marriage was pending separately. The DNA test conducted upon the child by a judicial order has remained unchallenged. The woman, on the other hand, claimed she was forced by the man to establish physical relations with two of his friends, as a condition of marriage.