Heart break, depression, trepidation, skepticism and doubt viciously INVADE the mind of some daddies, fathers and Males around Nigeria about the paternity and DNA trueness of a child born in their name . The recent media Report of a female banker who went on Rampage of Adulterous promiscuity has further push out the Subconscious and innermost thoughts of Some Men. Although the Trending Social media Report has Not been Litmus –tested on the scale of legal mechanism and proceeding, the matter as it is now is merely speculative, unsubstantiated and as such be best described as PUBLIC GOSSIP, NOISE , TITTLE-TATTLE and SCUTTLE BUTT.
Contextually, this article is to espouse the salient legal issues in Paternity Fraud and when will the need arise to call for a veritable scientific means of DNA (Deoxyribonucleic Acid) test to a ascertain who is the real father of a child.
Many a time the scandalous issue of who is the father of a child arises in the determination of a matter relating to Inheritance, Succession and Right of a Child to be financially Maintained by a man who stoutly denied be the father of the child or a man who denied a child on the ground that he has Never conjugated with the Mother of the Child.
A. PATERNITY ISSUES IN MARRIAGE
(i)Legally, during the subsistence of any Marriage, the Children who are born into the Marriage are considered as product and seed of the marriage, there is STRONG LEGAL PRESUMPTION that the husband of the Mother of the Child is the Actual father of the Child ADEYEMI V ABAYOMI ( 2002) FWLR (PT 132) p.136 And section 165 of Evidence Act 2011
(II)Also when a party has divorced or a Marriage had been dissolved there is a presumption that in not more than 280days if the woman give birth to a child, that child belongs to the former husband IBEABUCHI V IBEABUCHI LPELR – 412689 (C.A) and section 84 0f Matrimonial causes Act.
From this principle Above, there is a presumption that a child born in such a circumstances belong to the man. A woman CANNOT on a MERE STATEMENT transfer such children to another MAN, there is burden on the woman to prove the Contrary BEYOND REASONABLE DOUBT that the husband is not the real father of the child IDAHOSA v IDAHOSA( 2020) 6 NWLR (pt 1720 ) 254 S.C
BUT It must be stated here pronto when an issue arises as to who is the true biological father of a child, the Court usually determine the Paternity of a Child on the proof of evidence vide DNA test. OLAYINKA V ADEPARUSI ( 2011) LPELR – 8691(CA)
One Advantage of DNA test is that it is More reliable and Incontrovertible
It will be sheer wickedness, blatant stubbornness and repugnant to natural Justice to grant the Paternity of child to a man upon discovery that the supposed or putative father of the child born by his lawfully Married wife is Not real Biological Child of the Man ( EDET V ESSIEN ) 1972 ) 11 N.LR 47
PATERNITY ISSUE WHEN A WOMAN ACCUSES ANOTHER MAN TO BE FATHER OF HER CHILD, WHEN THE MAN IS NOT HER LAWFULLY MARRIED HUSBAND
It is Not uncommon to find this embarrassing and ugly scenario in Our society to see a woman accuse a man of having engaged with her in a Coitus or Amorous activities which resulted to a child being born, most men in this circumstance STOUTLY deny being the father of a child.
A party who wants the denying father to acknowledge the Paternity of child must have first lead Evidence to convince the Court that there was sexual relationship between her and the denying party, so that the court can be convinced that there is need to order DNA(Deoxyribonucleic) TEST
Generally, a Court will NOT FORCE parties or help parties established their case vide DNA test especially in circumstance when the child in Issue is an ADULT (ANOZIA V NNANI (2015 ) LPELR 24277 (CA) due to Right to privacy Under section 37 of the Constitution
BUT when a Minor or a child is to be taken Care of or financially Maintained, in the best interest of the Child, the COURT Can order that DNA test to be conducted between the denying Man and the child in a designated hospital by the Court, note that the woman is to pay the medical cost of the DNA test.
Anyone who willfully or Voluntary refuse to subject himself to DNA (Deoxyribonucleic) TEST on the order of a Court, such an act is highly Contemptuous and such person can punished for contempt of the Court ( ex facie)
PATERNITY ISSUES ARISING AFTER THE DEATH OF MAN
One of the most bizarre issue which sometimes arise after the death of a rich Man is when a person from the wilderness of unknown Jupiter claim to be the first son of the deceased (dead) man, the court usually solve this JIGSAW PUZZLE by referring to this principle of ;
”WHETHER THE MAN HAS IN AN UNMISTAKABLE TERMS AND UNEQUIVOCALLY TERMS ACCEPTED THE STRANGE PERSON AS HIS CHILD DURING THE DECEASED LIFE TIME”
Any such unmistakable terms MUST BE ON THE EVIDENCE THAT the decease once introduce the considered ”strange person” as his son to his immediate kingsmen or Evidence has been Adduced that he had been SECRETELY taking care of the welfare of the child ( OBASOHAN V OBASOHAN (2019 ) LPELR – 47187 (CA)
When a Man had In an Unmistakable Term REJECTED a child during his life time AND nothing was legally done to point the PATERNITY to him, the child remain UNKNOWN to the Man. When the child is of MAJORITY AGE it is very important that the child act TIMEOUSLY to locate his father
REMEDY FOR VICTIM OF PATERNITY FRAUD
There are legal means to assuage and mitigate the excruciating pressing pain which a Paternity fraud victim had suffered, parternity fraud arises when another person assumes the duty of a father to a child of another Man on the honest belief that he is the real biological father of the child. Upon the DNA(Deoxyribonucleic Acid) discovery that the putative father is NOT genetically match with the supposed child, there must have been HUGE FINANCIAL LOSS, LOSS OF TIME AND EMOTION TRAUMA incurred by the Victim of Paternity fraud.
REMEDIES FOR VICTIM OF PATERNITY FRAUD IN MARRIAGES
On the revelation of DNA(Deoxyribonucleic Acid) test that the child in the marriage belongs to another father, what this legally mean is that the woman has committed ADULTERY which is part of the grounds for Dissolution of marriage ADEYEMI V ABAYOMI (2002) FWLR (pt 132) 136
The putative father can claim DAMAGES and MONEY against the REAL FATHER and his Adulterous wife to assuage for loss of time and emotional trauma, the man can also claim financial MAINTENANCE from the woman on the ground that she caused the irretrievable breakdown of the marriage.
REMEDIES FOR VICTIM OF PATERNITY FRAUD FOR THOSE WHO ARE NOT IN MARRIAGE
The victim can sue for “TORT OF DECEIT’
Note that a person CANNOT be sued for Murder or Homicide on the ground that the PUTATIVE FATHER died of heart attack when he heard that the Child which he had spent Money belongs to Another person. The Reason is that pillars of ACTUS REUS(Physical altercation)And MENS REA.(intention ) to Are Not Conjunctively Present to Make the Real Biological father Criminally Liable for the Death of the PUTATIVE Father.
About the author
Ehidiamen Destiny Odianosen Esq
Uromi – Abuja based Lawyer