In a groundbreaking judgment on Tuesday, India’s Supreme Court addressed a complex conflict between paternity and legitimacy, arising from the birth of a child to a woman and a man who is not her husband.
The Court ruled that if a marriage remains valid and the spouses have had access to each other, the husband is considered the legal father of the child, even if he is not the biological parent.
The case, originating from Kerala, brought forth the intricate debate of paternity versus legitimacy, which prompted Justices Surya Kant and Ujjal Bhuyan to examine family law precedents in the UK, US, and Malaysia. All these jurisdictions tend to presume legitimacy while allowing for DNA tests if legitimacy is contested.
The Supreme Court on Tuesday (January 28), in a landmark ruling, addressed a complex conflict between paternity and legitimacy, arising from the birth of a child to an adulterous woman and a man other than her husband.
The Court ruled that if a marriage remains valid and the spouses have had access to each other, the husband is considered the legal father of the child, even if he is not the biological parent.
The case, originating from Kerala, brought forth the intricate debate of paternity versus legitimacy, which prompted Justices Surya Kant and Ujjal Bhuyan to examine family law precedents in the UK, US, and Malaysia. All these jurisdictions tend to presume legitimacy while allowing for DNA tests if legitimacy is contested.
Husband’s fatherhood maintained over biological evidence
Justice Surya Kant, writing the judgment, referred to Section 112 of the Indian Evidence Act, which establishes a strong presumption that a husband is the father of a child born to his wife during the subsistence of their marriage. Justice Kant emphasised that the purpose of this presumption is to prevent unwarranted inquiries into a child’s parentage.
According to the judgment, the burden of proof falls on those who assert a child’s illegitimacy, and it can only be proved through the assertion of “non-access,” meaning that the husband can challenge the legitimacy of the child only if he can prove that he had no access to his wife at the time of conception.
The Court further clarified that “non-access” means the impossibility of marital relations between the spouses, not just an inability. To rebut the presumption of legitimacy, one must assert non-access and substantiate it with evidence.
“Non-access means the impossibility, not merely inability, of the spouses to have marital relations with each other. For a person to rebut presumption of legitimacy, they must first assert non-access which, in turn, must be substantiated by evidence,” the court said.
What was the case about?
The case in question involved a woman who admitted to conceiving a child with a man other than her husband while still married. In 1991, the woman gave birth to a daughter, and in 2001, she had a son. The husband’s name was recorded as the “father” of the boy in the Municipal Corporation of Cochin’s birth register.
However, due to marital differences, the couple began living separately in 2003 and later filed a joint divorce application, which was granted by the family court in 2006. After the divorce, the woman approached the municipal corporation, requesting that the name of another man be entered as the child’s “father.”
She claimed that the other man was the biological father of the boy, following an extramarital affair. The corporation, however, stated that it could only make such a change if ordered by a court.
The Kerala courts had ordered a DNA test for the man, but he challenged this decision in the Supreme Court. Senior advocate Romy Chacko argued that forcing the man to undergo a DNA test would violate the provisions of Section 112 of the Evidence Act, which presumes the husband to be the father unless proven otherwise.
SC rejects plea for DNA test
In its judgment, the Supreme Court weighed the right to privacy and dignity against the child’s legitimate interest in knowing their biological father. The Court noted that compelling an individual to undergo a DNA test could subject his private life to public scrutiny, which could harm his reputation and dignity.
Recognising the importance of privacy, the Supreme Court ruled in favor of the man, allowing his appeal and setting aside the order for the DNA test.
“When dealing with the eminent need for a DNA test to prove paternity, this court balances the interests of those involved and must consider whether it is possible to reach the truth without the use of such a test. First and foremost, the courts must, therefore, consider the existing evidence to assess the presumption of legitimacy. If that evidence is insufficient to come to a finding, only then should the court consider ordering a DNA test. Once the insufficiency of evidence is established, the court must consider whether ordering a DNA test is in the best interests of the parties involved and must ensure that it does not cause undue harm to the parties…,” the judgment said.
This story originally titled Husband remains legal father of child born out of wife’s adultery in valid marriage despite biological evidence: Supreme Court was first published on Thursday, 30 January 2025, by Financialexpress.com
