Husband is the Legal Father of Child Despite Wife's Adultery

The Court also held that when there is evidence to presume legitimacy, courts cannot order a DNA test to determine paternity.

The Supreme Court recently ruled that if a marriage is intact between a man and a woman, and they had access to each other, the husband will be considered the legal father of any child born to the woman, even if she claims the child was conceived through an extramarital affair with another man. A Bench consisting of Justices Surya Kant and Ujjal Bhuyan highlighted that Section 112 of the Indian Evidence Act presumes the child’s legitimacy, and it is the responsibility of the party alleging illegitimacy to prove non-access between the spouses.

“The language of the provision makes it abundantly clear that there exists a strong presumption that the husband is the father of the child borne by his wife during the subsistence of their marriage. This section provides that conclusive proof of legitimacy is equivalent to paternity. The object of this principle is to prevent any unwarranted enquiry into the parentage of a child. Since the presumption is in favour of legitimacy, the burden is cast upon the person who asserts ‘illegitimacy’ to prove it only through ‘non-access,” the Court held.

Consequently, when there is enough evidence to presume legitimacy, courts cannot order a DNA test to determine paternity, as it would infringe on the privacy of the man whom the wife has purportedly identified as the child’s father. The Court stressed that forcing the alleged paramour to undergo a DNA test would violate his privacy and dignity.

“Forcefully undergoing a DNA test would subject an individual’s private life to scrutiny from the outside world. That scrutiny, particularly when concerning matters of infidelity, can be harsh and can eviscerate a person’s reputation and standing in society. It can irreversibly affect a person’s social and professional life, along with his mental health. On account of this, he has the right to undertake certain actions to protect his dignity and privacy, including refusing to undergo a DNA test,” the judgment stated.

Background

The “paternity and legitimacy” dispute reached the Supreme Court from Kerala after several rounds of litigation. The appeal was filed by the man accused of being the child’s biological father. The child’s mother alleged that the appellant fathered the child while she was still married to another man. At the time of the child’s birth in 2001, the woman was legally married to someone else, but she claimed the appellant was the child’s biological father. After divorcing in 2006, she approached the Municipal Corporation of Cochin, requesting them to list the appellant’s name as the child’s father, but the authorities rejected her request.

In 2007, the woman filed a suit in a munsiff court seeking a declaration that the appellant was the child’s father.

The munsiff court dismissed her petition, and this decision was upheld by the Kerala High Court in 2011. Both courts concluded that a valid marriage existed between the woman and her husband at the time and refused to order a DNA test.

In 2015, the woman’s son approached the family court, requesting maintenance from the appellant, whom he claimed to be his biological father.

The family court ruled that the munsiff court lacked jurisdiction over the previous suit and that its decision was not binding on the family court.

It further stated that a maintenance claim pertains to paternity rather than legitimacy, meaning the earlier rulings of the munsiff court and Kerala High Court would not prevent the family court from determining paternity through a DNA test.

The Kerala High Court upheld the family court’s decision, stating that a child’s legitimacy does not affect their entitlement to maintenance from their biological father. It further clarified that the presumption of legitimacy does not prevent an investigation into the child’s true paternity.

This prompted the appellant, accused of being the child’s father, to challenge the ruling in the Supreme Court.

Arguments

Senior Advocate Romy Chacko, representing the appellant, argued that once legitimacy is established, the child can only seek maintenance from his ‘legitimate’ father, not from a third party whom he claims to be his biological father. Therefore, in such cases, the appellant should not be compelled to undergo a DNA test.

In contrast, Senior Advocate Shyam Padman, representing the respondent-son, contended that ‘paternity’ and ‘legitimacy’ are distinct concepts. While legitimacy is based on legal presumption, paternity is determined scientifically. Thus, a civil suit concerning the presumption of legitimacy under Section 112 does not affect the process of establishing paternity.

Padman further argued that it is in the child’s best interest for the appellant to undergo a DNA test, as the child has the right to know his true parentage and assert the associated rights.

He also stated that, since maintenance matters fall under the exclusive jurisdiction of the Family Court according to Explanation (f) of Section 7 of the Family Courts Act, 1984, the court is empowered to determine paternity when the issue arises in a maintenance claim.

Judgment

After reviewing the arguments, the Supreme Court examined the legal positions in the United States, the United Kingdom, and Malaysia.

The Court noted that all three jurisdictions strongly uphold the presumption of a child’s legitimacy.

The courts (in those countries) can order a DNA test only after cogent and reliable evidence is led to prove illegitimacy and if the test is in the ‘best interests’ of the child,” the Supreme Court noted.

Concerning India, the Court noted that Section 112 of the Indian Evidence Act creates a strong presumption in favor of legitimacy.

The apex court further observed that while Indian courts have permitted DNA testing, it has been allowed only under specific circumstances.
When ordering such tests, the Bench highlighted the need to consider the privacy and dignity of the individual accused of fathering the child.

“Usually in cases concerning legitimacy, it is the child’s dignity and privacy that have to be protected, as they primarily come under the line of fire. Though in this instance, the child is a major and is voluntarily submitting himself to this test, he is not the only stakeholder bearing personal interest in the results, whatever they may be. The effects of social stigma surrounding an illegitimate child make their way into the parents’ lives as there may be undue scrutiny owing to the alleged infidelity. It is in this backdrop that the Appellant’s right to privacy and dignity have to be considered,” the judgment said.

The law permits only a preliminary inquiry into an individual’s private life by allowing the parties to present evidence to challenge the presumption of legitimacy, particularly by proving non-access. When the law specifies a procedure to achieve a particular objective, that procedure must be followed. If the evidence fails to rebut the presumption, the court cannot bypass the law to reach a desired outcome by allowing an intrusive inquiry, such as a DNA test, the Supreme Court ruled.

On the issue of civil court jurisdiction, the Supreme Court clarified that the jurisdiction granted to family courts is limited to resolving matters arising from matrimonial causes, which primarily involve rights within a marriage. Since there was no dispute concerning the marital relationship in this case, the jurisdiction of the munsiff court was not excluded.

“This matter, therefore, cannot be construed to fall within the exclusive jurisdiction of the Family Court and was thus, rightly entertained by the munsiff court and subsequently, the sub-judge,” the Court stated.

Based on the findings above, the Court reversed the family court’s order and dismissed the maintenance proceedings before the family court.

It also ruled that the respondent is presumed to be the legitimate son of his mother’s former husband.