IMPORTANT POINT
Husband cannot be asked to pay maintenance to a child where DNA test report records that he is not biological father of child.

JUDGMENT :

SANJAY KAROL J.

Leave Granted.

2. In this appeal, a mother (the appellant) challenges the finding of the High Court of Delhi at New Delhi, returned in judgment and order dated 17th October 2023 passed in CRLMC No.3944 of 2019 regarding her daughter not being entitled to maintenance to be paid by the respondent (alleged father) as returned by Metropolitan Magistrate-03 (Mahila Court), South East District, New Delhi, by order dated 1st December 2017¹[‘Trial Court’] and as affirmed by the District and Sessions Judge, South East, Saket Court, New Delhi by order dated 20th March 2019²[‘First Appellate Court’].

3. The facts in brief are that the appellant was employed as domestic help in the residence of the respondent for a period of three years wherein, as can be understood from the record of the Courts below, the latter established sexual relation with her on the pretext of marriage. The parties to this lis eventually did get married on 2nd March 2016. A child was born to the appellant on 1st April 2016. Matrimonial relations soured fairly quickly leading to the institution of a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005³[‘DV Act’] on 14th July 2016 seeking interim maintenance to the tune of Rs.25000/-per month; protection order for the appellant and her minor child against the respondent and his family members; an order to restore the custody of stridhan articles to the appellant. In response to the said application, the respondent prayed for a direction to conduct a DNA test to establish paternity of the child in question along with denying all allegations of domestic violence as baseless.

4. It appears from the record that the Trial Court accepted the prayer of the respondent and directed for a DNA test to be conducted. The report thereof is dated 8th May 2017 and records that the respondent is not the biological father of the appellant’s child. On this basis, along with the fact that she had apparently concealed her source of income, the Trial Court rejected the application for interim maintenance. The said order was appealed. The First Appellate Court in its judgment records that the prayer for maintenance of the child is no longer pressed. On the aspect of concealment too, the Court agreed with the Trial Court and as such the appeal was dismissed.

5. The High Court in terms of the impugned order elaborately discussed the position in law in so far as the presumption in paternity is concerned, under Section 112 of the Indian Evidence Act, 1872⁴[‘IEA’] which, we may record, is the main point of challenge raised before this Court as well. Having done so, it was observed that the protection of this Section would have been available to the appellant only if the DNA test (which has attained finality), had not been conducted since the intent of the Section is to grant the presumption of legitimacy to every child. Since the DNA report is on record, the Court while also noting earlier that the question of validity of the marriage inter-se the parties, is in question, refused to grant maintenance to the child. Qua the appellant it was held that the Trial Court made an error in denying interim maintenance and as such, the matter was remanded to the Trial Court for consideration afresh.

6. As already noted supra the main ground of challenge before us is Section 112 of the IEA. Let us proceed to examine the same. The same is reproduced as below along with its current iteration under the Bharatiya Sakshya Adhiniyam, 2023⁵[‘BSA’].

IEA

“112. Birth during marriage, conclusive proof of legitimacy.— The fact that any person was born during the continuance of a valid marriage between his mother