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The Bombay High Court recently dismissed a man's petition contesting the award of maintenance to his wife, noting that it is insufficient to draw a negative inference from a claim that the wife's former spouse refused to submit to a DNA test during cross-examination to determine the paternity of a girl child.

Justice Kishore C. Sant’s view on the issue

"Mere statement that question was made in cross-examination to wife asking whether she is ready to go for DNA test, where she has stated that she is not ready itself would not be sufficient to draw adverse inference against the wife," ruled Justice Kishore C. Sant of the Aurangabad bench.

Facts of the case 

In accordance with section 125 of the Indian Penal Code, the wife requested maintenance for both herself and her daughter, who is five years old. She claimed that her spouse had neglected her and ejected her from the home. The wife's girl child, according to the husband, is not his biological daughter. He is therefore exempt from maintenance obligations.

Procedural journey of the case

 The Trial Court ruled that there isn't enough evidence to demonstrate that the husband isn't the child's biological father. The Trial Court held that the kid was born during the continuation of the marriage and was therefore considered to be the husband's based on section 112 of the Evidence Act.

The Sessions Judge rejected the modification petition. He therefore went to the High Court.

Observations of the court

In order to prove his point, husband's attorney Ravindra Gore used Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik&Anr. The court noted that in that case, the husband and wife had jointly requested a DNA test, and on the Apex Court's directions, multiple rounds of retesting had been conducted. The lawsuit was then settled in the husband's favour.

However, the court noted that the husband in this instance has not submitted a separate application for DNA testing. The spouse had stated, even at the sessions court, that he is prepared for the DNA test and that he will not pursue the revision petition if the DNA report is against him. He did not, however, submit a separate application for DNA testing, it was added. In particular, the trial and revisional courts had noted that the husband had not proven that he had no contact with his wife for the 280 days prior to the birth of the kid.

Ruling of the court

Although the petitioner-husband was said to be prepared to undergo a DNA test, the high court noted that no separate application had been made for it. The court stated that the issue is whether DNA testing can be mandated at this point. The court said that the husband's request for DNA testing was not supported by any evidence.. The court maintained the lower courts' ruling that the husband has not established a case to demonstrate that the girl is not his biological daughter.
 

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