The Bombay High Court has upheld a family court order granting divorce to a man after his wife failed to prove that her second child was the husband’s biological son and she refused to undergo a DNA test.
“A single act of adultery is enough to grant decree of divorce and that there cannot be greater form of cruelty than this which can be meted out by a wife to her husband,” a division bench of judges VK Tahilramani and VL Achliya said on Monday. “This cruelty is such that it causes mental and emotional suffering.”
According to the divorce petition, the couple was married in 2002 and the woman moved to her parents’ home when she contracted tuberculosis in June 2005. When she returned to her husband’s house in January 2006, she was three months pregnant although there had been no sexual contact between the two during the period. The husband said this amounted to mental cruelty and filed an application in family court for a DNA test to prove that he was not the biological father. The woman refused to undergo the test.
The woman challenged the family court decision granting divorce and rejecting her plea for restitution of conjugal rights in the high court. She also sought permanent alimony and a monthly maintenance for the second child.
The high court stated that the woman was required to prove that the husband was the biological father by producing cogent, supportive and corroborative evidence, but this was not done. “There is no evidence to corroborate the case of the wife. We also find that her evidence is not trustworthy and reliable,” the judges stated.
Noting that the woman had deserted her husband in 2007 and did not return to her matrimonial home despite repeated attempts, the judges said: “...the wife is voluntarily residing in the parents’ home by deserting the respondent (husband), she is not entitled to get maintenance. Further, the second child is not the biological child of the husband, so he is not legally liable to maintain him.” The court has stayed its order for eight weeks to allow the woman to appeal in Supreme Court.