The Delhi High Court refused to direct a woman and her minor child to give their blood samples for a paternity test, saying the husband's purpose is apparently to establish her "adulterous conduct" while making the son a "pawn".
A bench of Justices Rajiv Shakdher and Amit Bansal said the couple lived together as husband and wife between 2008 and 2019 and given this undeniable fact, the presumption in favour of legitimacy under section 112 of the Evidence Act springs forth qua the minor child.
"What also weighs against the husband is that he chose not to question the paternity of the child till November 2020, when an application was preferred to seek amendments in the divorce action instituted by him. Thus, whether the wife had been involved in an adulterous relationship, as alleged, is an aspect that will have to go to trial," the court said in an order passed on Wednesday.
It said the apparent purpose behind the man seeking such a direction is "to establish the wife's adulterous conduct, the child being the pawn".
The man, who got married in 2008 and had a baby boy in 2014, filed for divorce in 2020. In the petition, he had initially not claimed that his wife could not have conceived a child except through in-vitro fertilisation (IVF) or via a sperm donor since he was suffering from "azoospermia".
The court noted that azoospermia is a condition where a person's ejaculate does not contain spermatozoa, which means there is an absence of live spermatozoa in the semen.
However, in 2022, the man sought to introduce this fact and amend the divorce petition, and the prayer was allowed by a family court.
In January 2023, he sought a direction from the family court that his wife and the child should be asked to give their blood samples so that the minor's paternity could be ascertained, which was declined by the court.
Challenging the family court's order, the man approached the High Court, which also dismissed his request saying there was no good reason to interfere with the judgment.
The court said the man's endeavour to establish that his wife had sexual intercourse voluntarily with another person is an aspect that might become the subject matter of trial before the family court.
"In our opinion, the husband cannot, by a sidewind, impact the interest of the child who is not a party to the proceedings. The family court would have to take into account the evidence that the parties may lead to arrive at a conclusion, as suggested by the husband, that the wife had sexual intercourse voluntarily with a person other than him.
"Whether or not the wife had an adulterous relationship could be gone into without subjecting the child to a paternity test," the bench said.
(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)
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