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Vijay Raj Mahajan (Advocate)     25 January 2019

No. The child in womb of married woman is legitimate child of her husband under section 112 Indian Evidence Act.
1 Like

Dr J C Vashista (Lawyer)     25 January 2019

It is not required.

TGK REDDI   25 January 2019

Whether or not legitimate, it deserves maintenance.     Where, then, is the question of proving?

TGK REDDI   25 January 2019

There's a proviso in Section 112 of The Indian Evidence Act.   

Though the Questioner didn't, and needn't, touch on the proviso, the Experts that have given the replies were supposed to.

Kishor Mehta (CEO)     25 January 2019

The child in womb of married woman is legitimate child of her husband under section 112 Indian Evidence Act. The only exception under the law is non-access between the parties. This �non-access� refers to the non-existence of opportunities for s*xual intercourse. The legitimacy of such a child can be rebutted if non-access can be proved.

vinay_2431 (engineer)     25 January 2019

Hello Vijay Rajan sir, what you said not completely true, for example in the case of ND Tiwari, after the child was born he was made to go through the DNA test and the bio logical father was proven. in ND Tiwari case the court didn't consider section 112 of Indian evidence Act Rohit Shekhar the so called bio logical son's Mother was legally married to B.P. Sharm , but still the court asked ND Tiwari to go through DNA testing so as per that judgement on ND Tiwari, your statement of "The child in womb of married woman is legitimate child of her husband under section 112 Indian Evidence Act" is wrong.

Adv Deepak Joshi +917017821512 (Advocate)     26 January 2019

Originally posted by : vinay_2431
Hello Vijay Rajan sir,
what you said not completely true, for example in the case of ND Tiwari, after the child was born he was made to go through the DNA test
and the bio logical father was proven. in ND Tiwari case the court didn't consider section 112 of Indian evidence Act
Rohit Shekhar the so called bio logical son's Mother was legally married to B.P. Sharm , but still the court asked ND Tiwari to go through DNA testing
so as per that judgement on ND Tiwari, your statement of
"The child in womb of married woman is legitimate child of her husband under section 112 Indian Evidence Act" is wrong.

Something to add on, in ND Tiwari Case mother herself claim that rohit is not son of her husband, further she claimed rohit is son of ND Tiwari, hence court ordered for DNA profiling.

1 Like

TGK REDDI   26 January 2019

Excellent Reply by Shri Deepak Joshi.

vinay_2431 (engineer)     26 January 2019

Hello Joshi sir/TGKREDDI sir,

      weather mother requested or father requested has nothing to do for DNA test , as per the evidence act 112 of India if a son is begotten during the valid marriage then the son is considered to be the legitimate son of that couple unless he or she needs to establish the proof that they both do not have access.

in ND Tiwari case, the bio logical son submitted the proof's as below

if you look at the judgement of ND Tiwari, rohit sharma proved that her mother Mrs. Ujjwala Sharma and her husband  Sh. B.P. Sharma  marriage is broken or their relation ship is not existing see the below statement from the judgement

page 25 of the judgement copy states as below

" Documents have been filed by the plaintiff, on the record to establish that both Sh. B.P. Sharma and Mrs. Ujjwala Sharma were estranged in 1970 and subsequently their marriage was dissolved. Both of them have filed affidavits in this regard"

 So ND Tiwari was made to undergo DNA test because of the above reason not because rohit sharma or his mother ujjwala sharma's request for DNA.

  so in the case of our current queriest his question is weather a mother needs to prove or not, not required to prove as per the evidence act , but if her husband can prove he had no access to his wife then she needs to prove the son's legitimacy by conducting or taking  a DNA test.

Rgds,

Vinay.

TGK REDDI   26 January 2019

In ND Tewari's case, the birth was out of wedlock.    So DNA Test was necessary for proving that it was Tewari's baby.

In this case no such proof is necessary.    Whether or not the baby is legitimate it deserves maintenance. 

Kusum Duhan   26 January 2019

she was already pregnant from her live in relation partner. .but parents got her married to someone else after her live in relationship partner denied to marry and accept that pregnanc...and before marrying someone else she filed a maintenence suit from her live in relationship partner in a district court which was denied after 2 months by the court saying she is a legally wedded wife of someone else...after which she appealed in hight court Delhi....can she get maintenance from her live in relationship partner. ...P.S. - she is not even living with her husband due to cruel treatment from in- laws family ...and has filed maintenance suit against them along under domestic violence act. ..she has filed 2 cases of maintenance rt now...

TGK REDDI   27 January 2019

Shri Kusum Duhan

Dear Sir

Your above Post is quite typical.    I appreciate you.

I'm rather too ignorant to answer to the Post but, however, shall try to.

Child born as a result of premarital pregnancy deserves maintenance.    It took birth after wedlock.

By the way premarital s*x is not a ground for divorce.    In my opinion it should be.     It shouldn't be an offence as it is.

1 Like

vinay_2431 (engineer)     28 January 2019

thanks for the clarification kusum sir,

    then i think the court will allow the DNA test to prove who the biological father is and allocate some maintanance to the child.

Rgds,Vinay.

TGK REDDI   29 January 2019

The Court will, I think, allow maintenance without DNA test.


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