Biological father is liable to maintain his child, says Delhi High Court

New Delhi [India], October 25 : The Delhi High Court recently upheld the trial court orders denying maintenance to a child who was born after one month of the marriage of the parties. The high court took note of the DNA report which stated that husband of the petitioner is not biological father of her child.
Justice Swarana Kanta Sharma said, "In face of DNA report existing on record, respondent (husband) 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 and respondent.
In this regard, the law is also settled that the biological father is liable to maintain his child, said Justice Sharma.
The bench also took note of the arguments of counsel for respondent that he was a minor at the time of marriage. Therefore, the marriage itself is void.
It was also argued that the petitioner wife concealed the fact of her earning from the court.
The high court said, "This Court is of the opinion that at the stage of grant of interim maintenance, a prima-facie view of the facts placed before the Court had to be taken, along-with the affidavit of income and expenditure filed before it by the parties concerned, as per settled law. The factors for deciding the grant of maintenance are also settled in this regard.
The high court said that in this case, even if it is the case of the petitioner that she was working as a cook or domestic help and was earning earlier, at present, there is nothing on record to reveal that she is earning anything or is working anywhere.
"Since the factum of marriage between the parties is not disputed though validity thereof is disputed, which is subject matter of adjudication before the concerned court of law, this Court is of the opinion that the learned Trial Court has committed an error by denying maintenance to the petitioner herein since at this stage, it is apparent from the record that she is not working or earning," Justice Sharma pointed out.
The bench said, "Therefore, considering the facts and circumstances of this case, this Court directs that the present matter be remanded back to the concerned Court for deciding afresh the quantum of maintenance to be paid to the petitioner on the basis of documents placed before it by both the parties, within two months from receipt of copy of this judgment.
Petitioner had moved a petition seeking setting aside of judgement dated 20.03.2019 passed by District and Sessions Judge, South East District, Saket, Delhi in criminal appeal. The sessions court had upheld judgment passed by Metropolitan Magistrate of Saket Court.
It was the petitioner that she used to work as domestic help/work at the house of respondents for three years from February 2013 to February 2016.
She alleged that during this period, respondent had made sexual advances towards the petitioner and had sexual intercourse on regular basis with the petitioner on the pretext of promise to marry her.
As alleged, respondent had also compelled the petitioner twice to have sexual intercourse with two of his friends also and when the petitioner had refused to do so, respondent had threatened not to marry her in case she will not maintain physical relations with his two friends and, due to such threats, she had performed involuntary sexual intercourse with the said two friends of respondent on two occasions in the aforesaid period of three years.
The petitioner also stated that names of those two persons can be disclosed only if this Court directs the petitioner to do so.
It was stated that on 02.03.2016, marriage was solemnized between the petitioner and respondent.
On 01.04.2016, a girl child was born to the petitioner, within less than one month of solemnisation of marriage between the parties.
The petitioner On 14.07.2016, filed a petition under Section 12 of Protection of Women from Domestic Violence Act, 2005 against the respondents before ACMM (Additional Chief Metropolitan Magistrate), Saket Court, New Delhi along with affidavit of income as well as application for grant of interim maintenance.
On 19.01.2017, husband filed a reply to the petition along with an application for conducting DNA test to determine the paternity of the child.
The said application seeking direct to conduct DNA test was allowed. However, on 01.12.2017, Magistrate had rejected the claim of maintenance of petitioner herein vide first impugned order dated 01.12.2017 on the ground of concealment of income.
She challenged the order before sessions court. Her appeal was also dismissed by the Court of Sessions on March 20, 2019.
Petitioner's counsel had argued that since the child in this case was born during subsistence of a legal marriage, the presumption under Section 112 of the Indian Evidence Act will be in favour of the petitioner.
It was prayed that maintenance be not only granted to the petitioner but also to the child born in this case by ignoring the DNA test since the child has been born during subsistence of legal marriage between the parties.
It was also stated that due to social stigma caused to her due to DNA result going against the petitioner, she has been continuously taunted and her parents are also not taking care of her.