NEW DELHI: Resolving a conflict between paternity and legitimacy arising from the birth of a child to an adulterous woman by a man other than her husband, SC on Tuesday ruled that if the marriage subsisted and the spouses had access to each other, the husband would remain the child’s legal father despite not being the biological parent.
This intriguing facet of ‘paternity vs legitimacy’ debate in a case from Kerala led a bench of Justices Surya Kant and Ujjal Bhuyan to examine the family law position in the UK, US and Malaysia, all of which lean towards presumption of legitimacy even though they permit DNA test when legitimacy of the child is questioned.
Writing the judgment, Justice Kant said that under Section 112 of Indian Evidence Act, “there exists a strong presumption that the husband is the father of the child borne by his wife during the subsistence of their marriage”.
Stating that the Section provides that conclusive proof of legitimacy is equivalent to paternity, he stressed, “The object of this principle is to prevent any unwarranted inquiry 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’,” Justice Kant said. This means, a husband can question the legitimacy of a child only when he can prove that he had no access to his wife when the child was conceived. The bench went on to define non-accessibility. “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,” it said.
In the present case, the woman confessed to have begotten the child from a man other than her husband during the subsistence of marriage. She later took divorce and moved the Cochin municipality for changing the surname of the child to that of his biological father. The municipality refused and said it could be done only on the orders of a court.
The woman moved court claiming the man outside the marriage to be her child’s father, who denied having any sexual relationship with her. Enraged, she claimed maintenance for self and child from the man. The courts in Kerala directed the man to undergo a DNA test. He challenged this before the SC. Senior advocate Romy Chacko argued that the man could not be forced to a DNA test for establishing paternity as that would be in gross violation of the mandate of Section 122 of Evidence Act.
The bench said, “On the one hand, courts must protect the parties’ rights to privacy and dignity by evaluating whether the social stigma from one of them being declared ‘illegitimate’ would cause them disproportionate harm. On the other hand, courts must assess the child’s legitimate interest in knowing his biological father and whether there is a need for a DNA test.”
The SC said, “Forcefully undergoing a DNA test would subject an individual’s private life to scrutiny by the outside world… (which) can be harsh and can eviscerate a person’s reputation… Because of this, he has the right to undertake certain actions to protect his dignity and privacy, including refusing to undergo a DNA test.”
The SC allowed the man’s appeal and set aside the direction for a DNA test.
