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Truth's Warrior (Quality)     01 May 2015

Common law

Is common law applicable to an impotent husband whose wife had an affair with another man and concieved? Can the putative father claim paternity?



Learning

 7 Replies

bsrao   01 May 2015

India does not much case law on this subject. One of its first kind of paternity suit that reached the Apex court is that of ND Tiwari's. But I am sure the Biological Father is entitled to claim paternity.

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Nitin (marketting manager)     02 May 2015

As per the SC rule if the mother of the child does not specify who is the actual father is for 280 days post Birth of the child ,its treated as per law that the child belongs to her husband and all the properties and other maintanance will be based on the Husband [even thought he is not actual father]

if you claim that you are the father of the child you will have to prove it with DNA tests,which should be ordered by court and that is highly impossible situation as our courts treat a marriage between two adults as a sacred,so my feeling is you will have to with draw your petition as if they approve for you then every man will file for petition on wife to prove that the child is HIS child and thats a nuiscence in the society so courts will not order this.

 

may be experts can give you more info.

Nitin

 

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Truth's Warrior (Quality)     02 May 2015

As per my opinion, a putative father should be given rights to visitation and even establish paternity. I feel the courts should allow DNA tests to be peformed so that adultery can be curbed. As per Indian law if a woman is an abbetor in adultery she will be let scott-free, but what about the apathy and emotional trauma that a putative father and donors face when they are not even allowed to establish paternity or visit their children? Are they just machines for producing children? Need your valuable inputs and suggestions on this topic

Truth's Warrior (Quality)     02 May 2015

Hi Nitin, Thank u for ur valuable input. I do understand that the courts will not order DNA tests keeping in mind the welfare and the best interests of the child, but what if the best interest of the child and his/her welfare after 5 years is living with the putative father? What if the legal husband (husband per common law) is impotent? What if the mother has low morals? What if the impotent husband undergoes treatment and they have a child of their own in the future? will they treat the "legal child" (per common law) as they treat their own natural child? I am sure experts too will not have much opinion on this as these cases are rare.

Nitin (marketting manager)     05 May 2015

The best interest of child is when he becomes adult its upto him to find who his father is,

unless he becomes adult there is nothing that can be done from parents side or from childs side

What if the legal husband (husband per common law) is impotent?

As per the Law  he has to prove his impotency with in 280 days after the child is born, if he has not spoken up during that one year duration [Almost an year] then it indicates that he accepted the child as his child.

What if the mother has low morals?

You have to prove her morals in court like adultery etc etc,once proven the husband will get the right to give divorce on grounds of Adultary,but again he has to give maintanance to the child as he is legal wedded husband.

 

What if the impotent husband undergoes treatment and they have a child of their own in the future? will they treat the "legal child" (per common law) as they treat their own natural child?

He has to treat both of them equally as he has not spoken up during the first year of child, ,but once the kids grow up and become adults its upto them what they want to do , As a father [Legal/Illegal] he has to give maintanance to them until they turn to adults [21 years]

there is no point shying away from truth face the truth and keep your life happy there nothing more important than your life,you have the right to live the way you like.

Rgds,

Nitin.

Nitin (marketting manager)     05 May 2015

THE PATERNITY ACT Act xxx of 2012 Title and extant of operation of the Code This Act shall be called the THE PATERNITY ACT, and shall 1[extend to the whole of India 2[except the State of Jammu and Kashmir].] 1 Definitions. Section. 1. As used in this act: (a) “Child born out of wedlock” means a child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage. (b) “Child” means a child born of wedlock. (c) “Mother” means the mother of a child born out of wedlock. (d) “Court” means (1) The District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian, or (2) Where a guardian has been appointed or declared in pursuance of any such application- (a) The Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian, or (b) In any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides. (e) “DNA identification profile” means the results of the DNA identification profiling of genetic testing material. (f) “DNA identification profiling” means a validated scientific method of analyzing components of deoxyribonucleic acid molecules in a sample of genetic testing material to identify the pattern of the components' chemical structure that is unique to the individual. (g) “Genetic testing material” means a sample of an individual's blood, saliva, or tissue collected from the individual that is used for genetic paternity testing conducted under this act. (h) “Summary report” means a written summary of the DNA identification profile that includes only the following information: (i) The court case number, if applicable, the laboratory case number or identification number, and the family welfare authority case number. (ii) The mother's name and Religion. (iii) The child's name. (iv) The alleged father's name and Religion. (v) The collection dates and identification numbers of the genetic testing material. (vi) The cumulative paternity index. (vii) The probability of paternity. (viii) The conclusion as to whether the alleged father can or cannot be excluded as the biological father. (ix) The name, address, and telephone number of the contracting laboratory. (x) The name of the individual certifying the report. (i) “Birth certificate means a Certificate issued by hospital where child was born which include Mother and Father name. 2 Child born to married couple / out of wedlock; liability of parents. Section. 2. (1) When Man and women marry, it is assumed that every child born after the marriage is of her husbands, but many times same father is not biological father of the child, so the parents of a child born out of wedlock are liable for the necessary support and education of the child. They are also liable for the child's funeral expenses. Subject to subsections (2) and (3), based on each parent's ability to pay and on any other relevant factor, the court may apportion, in the same manner as medical expenses of the child are divided under the child support formula, the reasonable and necessary expenses of the mother's confinement and expenses in connection with her pregnancy between the parents and require the parent who did not pay the expense to pay his or her share of the expense to the other parent. At the request of a person other than a parent who has paid the expenses of the mother's confinement or expenses in connection with her pregnancy, the court may order a parent against whom the request is made to pay to the person other than a parent the parent's share of the expenses. (2) If Women unmarried, she should identify father of the Child and he should notified for DNA identification profiling to match the Paternity. And to be Registered in Birth certificate. (3) If women is not willing to identify father of the child, then she should pay all the expenses of the Child, and child is treated as illegitimate and stateless, till identity of the Father is confirmed. (4) If a pregnancy has been determined and Women terminate without the consent of the Father then she should be charged for murder of the unborn child and in other criminal proceeding as per law of the land. (5) After DNA identification profiling, if husband not found a Biological Father, then he is not liable to pay any expenses of the child. (6) After DNA identification profiling, if husband not found a Biological Father, then he has valid reason for Divorce if he want, and claim damage from his wife and Father of the Child. (7) The court order shall provide that if the father marries the mother after the birth of the child and provides documentation of the marriage to the court, the father's obligation for payment of any remaining unpaid confinement and pregnancy expenses is abated subject to reinstatement after notice and hearing for good cause shown, including, but not limited to, dissolution of the marriage. The remaining unpaid amount of the confinement and pregnancy expenses owed by the father is abated as of the date that documentation of the marriage is provided to the court. (8) If Man divorce when his wife is pregnant, then Mother has right to claim child medical expenses and supports after DNA identification profiling (9) If the father dies, an order of filiation or a judicially approved settlement made before his death is enforceable against his property in the same manner and way as a divorce decree. (10) Every Hospital should fill Summery report and issue Birth certificate and notify State of Birth of the Child. (11) Women has right to ask Genetic testing material from anyone who she is claiming, Father of her Child. And it should done in secrecy. (12) False claim of Paternity by women is a Criminal offence. 3 Paternity proceeding; Section. 3. (1) An action under this act shall be brought in the family court by the mother, the father, a child who became 18 years of age after August 15, 2011, or the family welfare authority as provided in this act. The Indian court rules for civil actions apply to all proceedings under this act. A complaint shall be filed in the state where the mother or child resides. If both the mother and child reside outside of this state, then the complaint shall be filed in the State where the putative father resides or is found. The fact that the child was conceived or born outside of this state is not a bar to entering a complaint against the putative father. (2) Alleged Father of the Child should pay half of the expenses of the Child. (3) An action to determine paternity shall not be brought under this act if the child's father acknowledges paternity, or if the child's paternity is established under the law of another state. (3) An action under this act may be commenced during the pregnancy of the child's mother or at any time before the child reaches 18 years of age. For a child who became 18 years of age after August 15, 2011 and before January 2, 2013, an action under this act may be commenced before January 1, 2013. This subsection applies regardless of whether the cause of action accrued before January 2, 2013 and regardless of whether the cause of action was barred under this subsection before January 2, 2013. A summons issued under this section shall be in the form the court determines and shall be served in the same manner as is provided by court rules for the service of process in civil actions. (4) The mother or alleged father who has physical possession of the child and is eligible for Free legal assistance from the state. (5) The party filing the complaint shall name the person believed to be the father of the child and state in the complaint the time and place, as near as possible, when and where the mother became pregnant. If the family welfare authority is the plaintiff, the required facts shall be stated upon information and belief. (6) Upon the filing of a complaint, the court shall issue a summons against the named defendant. If the defendant does not file and serve a responsive pleading as required by the court rules, the court may enter a default judgment. Neither party is required to testify before entry of a default judgment in a proceeding under this act. (7) If, after service of process, the parties fail to consent to an order naming the man as the child's father as provided in this act within the time permitted for a responsive pleading, then the family welfare authority or its designee may file and serve both the mother and the alleged father with a notice requiring that the mother, alleged father, and child appear for genetic paternity testing. (8) If the mother, alleged father, or child does not appear for genetic paternity testing as provided in subsection (7), then the family welfare authority or its designee may apply to the court for an order compelling genetic paternity tests or may seek other relief as permitted by statute or court rule. (9) It is unnecessary in any proceedings under this act commenced by or against a minor to have a next friend or guardian appointed for the minor unless required by the circuit judge. A minor may prosecute or defend any proceedings in the same manner and with the same effect as if he or she were of legal age. (10) If a child born out of wedlock / illegitimate or abandon has right to claim support and will get Free legal support from the State. (11) If a determination of paternity is made under this act, the court may enter an order of filiation . Regardless of who commences an action under this act, an order of filiation entered under this act has the same effect, is subject to the same provisions, and is enforced in the same manner as an order of filiation entered on complaint of the mother or father. (12) Disobeying Summery report by alleged Father is criminal offence and tried as under laws of the State. 4 Summons or notice; notification of obligation and rights; court order for genetic paternity testing. Section. 4. (1) The summons or other initial notice to a party in an action under this act shall contain notification that the party's obligation to support the child will be determined and that the party's rights to custody of and parenting time with the child may be determined during the paternity action. (2) The family welfare authority or its designee that requires a party to appear for genetic paternity testing as provided in section 4, or the party requesting genetic paternity testing if a court orders genetic paternity testing for an individual as provided in section 4, shall serve notice of the testing on the mother and the alleged father. The notice shall include explanations of all of the following: (a) The test to be performed. (b) The purpose and potential uses of the test. (c) How the test results will be used to establish paternity or nonpaternity as provided in section 6. (d) How the individual will be provided with the test results. (e) The individual's right to keep the test results confidential as provided in section 6a. 4a Effect of paternity in another state. Section. 4b. The establishment of paternity under the law of another state has the same effect and may be used for the same purposes as an acknowledgment of paternity or order of filiation under this act. 5 Mother and alleged father competent to testify; cross-examination; exclusion of public; continuance until birth of child. Section. 5. (1) Both the mother and the alleged father of the child shall be competent to testify, and if either gives evidence he or she shall be subject to cross-examination. The court may exclude the general public from the room where proceedings are held, pursuant to this act, admitting only persons directly interested in the case, including the officers of the court, officers or public welfare agents presenting the case, and witnesses. (2) If the child is not born at the time set for trial, the case, unless the defendant mother or defendant father consents to trial, shall be continued until the child is born. 6 Pretrial proceedings Section. 6. (1) In a proceeding under this act before trial, the court, upon application made by or on behalf of either party, or on its own motion, shall order that the mother, child, and alleged father submit to blood or tissue typing determinations, which may include, but are not limited to, determinations of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification profiling, to determine whether the alleged father is likely to be, or is not, the father of the child. If the court orders a blood or tissue typing or DNA identification profiling to be conducted and a party refuses to submit to the typing or DNA identification profiling, in addition to any other remedies available, the court may do either of the following: (a) Enter a default judgment at the request of the appropriate party. (b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is shown for not disclosing the fact of refusal. (2) A blood or tissue typing or DNA identification profiling shall be conducted by a person accredited for paternity determinations by a nationally recognized scientific organization. (3) The court shall fix the compensation of an expert at a reasonable amount and may direct the compensation to be paid by the State or by any other party to the case, or by both in the proportions and at the times the court prescribes. Before blood or tissue typing or DNA identification profiling is conducted, the court may order a part or all of the compensation paid in advance. If the family welfare authority paid for the genetic testing expenses, the court may order repayment by the alleged father if the court declares paternity. Documentation of the genetic testing expenses is admissible as evidence of the amount, which evidence constitutes prima facie evidence of the amount of those expenses without third party foundation testimony. (4) Subject to subsection (5), the result of blood or tissue typing or a DNA identification profile and the summary report shall be served on the mother and alleged father. The summary report shall be filed with the court. Objection to the DNA identification profile or summary report is waived unless made in writing, setting forth the specific basis for the objection, within 14 calendar days after service on the mother and alleged father. The court shall not schedule a trial on the issue of paternity until after the expiration of the 14-day period. If an objection is not filed, the court shall admit in proceedings under this act the result of the blood or tissue typing or the DNA identification profile and the summary report without requiring foundation testimony or other proof of authenticity or accuracy. If an objection is filed within the 14-day period, on the motion of either party, the court shall hold a hearing to determine the admissiblity of the DNA identification profile or summary report. The objecting party has the burden of proving by clear and convincing evidence by a qualified person described in subsection (2) that foundation testimony or other proof of authenticity or accuracy is necessary for admission of the DNA identification profile or summary report. (5) If the probability of paternity determined by the qualified person described in subsection (2) conducting the blood or tissue typing or DNA identification profiling is 99% or higher, and the DNA identification profile and summary report are admissible as provided in subsection (4), paternity is presumed. If the results of the analysis of genetic testing material from 2 or more persons indicate a probability of paternity greater than 99%, the contracting laboratory shall conduct additional genetic paternity testing until all but 1 of the putative fathers is eliminated, unless the dispute involves 2 or more putative fathers who have identical DNA. (6) Upon the establishment of the presumption of paternity as provided in subsection (5), either party may move for summary disposition under the court rules. this section does not abrogate the right of either party to child support from the date of birth of the child. (7) Alleged Father can request for multiple DNA identification profiling; but not more than 3 agencies. 6a Information obtained from genetic paternity testing; disclosure prohibited;p> retention and destruction of material; confidentiality; sale, transfer, or offer; audit; violation as misdemeanor; penalty. Section. 6a. (1) Except as authorized under this act, a person shall not disclose information obtained from genetic pagenetic paternity testing that is authorized under this act. (2) If an alleged father who is tested as part of an action under this act is found to be the child's father, the contracting laboratory shall retain the genetic testing material of the alleged father, mother, and child for no longer than the period of years prescribed by the national standards under which the laboratory is accredited. If a man is found not to be the child's father, the contracting laboratory shall destroy the man's genetic testing material after it is used in the paternity action. (3) DNA identification profiling or any genetic paternity testing details are excluded from RTI (Right to Information Act) unless court Orders. (4) A contracting laboratory, the family welfare authority or its designee, or another entity involved with the genetic paternity testing are all required to protect the confidentiality of genetic testing material,except as required for a paternity determination under this act. The court, its officers, and the family welfare authority shall not use or disclose genetic testing material for a purpose other than the paternity determination as authorized by this act. (5) A person shall not sell, transfer, or offer genetic testing material obtained under this act except as authorized by this act. (5) A contracting laboratory shall annually cause to be conducted an independent audit verifying the contracting laboratory's compliance with this section and section 6. The audit shall not disclose the names of, or otherwise identify, the test subjects required to submit to blood or tissue typing or DNA identification profiling under section 6 during the previous year. The contracting laboratory shall forward the audit to the department of consumer and industry services. (6) A violation of this section is a misdemeanor punishable by a fine of not more than Rs.50,000.00. A second or subsequent violation of this section is a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than Rs.1,00,000.00, or both.> 7 Order of filiation of declaring paternity Section. 7. (1) The court shall enter an order of filiation declaring paternity and providing for the support of the child under 1 or more of the following circumstances: (a) The finding of the court or the verdict determines that the man is the father. (b) The defendant acknowledges paternity either orally to the court or by filing with the court a written acknowledgment of paternity. (c) The defendant is served with summons and a default judgment is entered against him or her. (2) An order of filiation entered under subsection (1) shall specify the sum to be paid weekly or otherwise, as prescribed in section 5 of the support and parenting time enforcement act, until the child reaches the age of 18. The court may also order support for a child after he or she reaches 18 years of age. In addition to providing for the support of the child, the order shall also provide for the payment of the necessary expenses incurred by or for the mother in connection with her confinement and pregnancy and for the funeral expenses if the child has died, as determined by the court under section 2. A child support obligation is only retroactive to the date that the paternity complaint was filed unless any of the following circumstances exist: (a) The defendant was avoiding service of process. (b) The defendant threatened or coerced through domestic violence or other means the complainant not to file a proceeding under this act. (c) The defendant otherwise delayed the imposition of a support obligation. (3) A judg(3) A judgment or order entered under this act providing for the support of a child or payment of expenses in connection with the mother's confinement or pregnancy is enforceable as provided in the support and parenting. If this act contains a specific provision regarding the contents or enforcement of a support order that conflicts with a provision in the support and parenting time. (4) If an order of filiation or acknowledgment of parentage is abrogated by a later judgment or order of a court, the clerk of the court that entered the order shall immediately communicate that fact to the director of the department of community health on a form prescribed by the director of the department of community health. An order of filiation supersedes an acknowledgment of parentage. (5) Within the time prescribed by court rule, the party, attorney, or agency that secures the signing of an order of filiation shall serve a copy of the order on all parties to the action and file proof of service with the court clerk. (6)Child / Parent is not Eligible to claim or file for Paternity once Child turn 18 7a Provisions for custody and parenting and other dispute.> Section. 7a. (1)If childs biological Father is not husband of the Mother, and husband has no objection, then court can declare him as a biological Father. (2) In above case biological Father has no right to claim visitation / Custody. (3)Keeping or taking Child from any Parent is criminal offence. (4)Child or custodian can claim / demand visitation from any or both parents once a month or as agreed till child attain the age of 12. (5)Child Should made Available or brought to other parent without any court proceeding, till custody is decided. (6)Custody should be on best interest of the Child, and to be raised with both parents love and effection. (7)Child should not to be asked to choose guardian or custodian. (8)Anyone fueling hatred in other parent should be charged with criminal offence. (9)Any parent can claim and prove that other parent is not capable to raise the Child and refer to any custodian if both are not capable. 8 Payments to the court, and disbursement; Section. 8. (1)The court shall require the payment of money to be made to the court, clerk of the court, or state disbursement unit, which money shall be disbursed in accordance with the order of the court, except that upon certification by a State family welfare authority that a complainant is receiving public assistance, a payment received by the court for support and education of a child born out of wedlock shall be transmitted to the family welfare authority . (2)Any Parent can make onetime payment to court chosen Bank which pay monthly child support. (3) The person so adjudged to be the father of the child may be required to give bond with 1 or more sufficient sureties to the satisfaction of the court, who makes monthly payments. (4) The judge, in case of default in the payment, when due, of any installment or any part of the installment or in the condition of the bond, may adjudge the reputed father guilty of contempt of the court. (5) In order to make effective the purpose and intention of the bonds required under subsection (1), the court may appoint a receiver of the real and personal property belonging to the judgment debtors with powers not exceeding those customarily exercised by receivers. (6) Maintenance of the Child Should be divided equally among both parents. 9 Continuing jurisdiction; purposes.> Section. 9. The court has continuing jurisdiction over proceedings brought under this act to increase or decrease the amount fixed by the order of filiation subject to section 8, and to provide for, change, and enforce provisions of the order relating to the custody or support of or parenting time with the child. 10 Mother's support and education of child born out of wedlock; bond; default; liability> of father. Section. 10. (1) If a mother of a child born out of wedlock possesses property and fails to support and educate her child, the court having jurisdiction, on application of the child's guardian or next friend, or the family welfare authority if the child is being supported in whole or in part by public assistance, may investigate the matter and, after a hearing and subject to section 8, may make an order charging the mother with the payment of money weekly or otherwise for the child's support and education. (2) The court may require the mother to give security, by bond, with sufficient sureties approved by the court for the payment as directed by the order. In case of default under the bond, the bond shall be enforced in the manner provided in section 8. (3) This section does not relieve the father from liability for the child's support and education in accordance with this act. (4) Any Parent can deny taking child support from other parent. 11 False complaint; penalty.> Section. 11. Any person making a false complaint under this act as to identity of the father, or the aiding or abetting therein, shall be guilty of a misdemeanor. This section shall not apply to an authorized official of the department of social services who in good faith filed a complaint under this act based upon information and belief. 12 Appeal; stay of execution, bond, security for costs.> Section. 12. An appeal in all cases may be taken by either the complainant or the defendant, a guardian ad litem appointed by the court for the child, the mother or her personal representative, from any final order or judgment of any court having jurisdiction of filiation proceedings. No appeal, however, shall operate as a stay of execution unless the defendant gives the security provided in section 9 of this act and further security to pay the costs of such appeal. 13. Reference to mother as parent of child in records, certificates, or other papers.> Section. 13. (1) Mother(1) Mother should provide at least 2 witness who were present at the time of birth of the child, if child is not born hospital. (2)In a record, certificate, or other paper made or executed requiring a declaration by or notice to the mother of a child born out of wedlock or otherwise requiring a reference to the relation of a mother to such a child, it shall be sufficient to refer to the mother as the parent of the child. An explicit reference shall not be made to illegitimacy. (3)Family welfare Authority has authority to subject mother to DNA identification profiling. 14 Application of act.> Section. 14. This act applies every child birth as well as all cases arising out of birth out of wedlock commenced after this act takes effect. 15 Fees; assessment in order of filiation. Section. 15. No fees for commencement of suit, filing fee, decree or judgment fee, or stenographer fee shall be required in proceedings under this act, but the court may assess such fees against the father in the order of filiation. 16 Paternity act; short title.> Section. 16. This act shall be known and may be cited as “The paternity act 2012”.

Truth's Warrior (Quality)     05 May 2015

Can a putative father establish paternity as the legal father per common law is impotent? Can he fight for visitation rights?

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