In a recent judgment, the Supreme Court ordered that if a marriage exists between a man and a woman and they have access to each other, the husband is legally presumed to be the father of any child born to the wife, even if she claims the child resulted from an extramarital affair.
A Bench of Justices Surya Kant and Ujjal Bhuyan emphasized that Section 112 of the Indian Evidence Act establishes a strong presumption of legitimacy. The burden of disproving this presumption falls on the person asserting illegitimacy, who must provide evidence of non-access between the spouses.
“The provision establishes a strong presumption that a child born during a valid marriage is the husband’s. It equates legitimacy with conclusive proof of paternity, aiming to prevent unnecessary inquiries into a child’s parentage. Since legitimacy is presumed, proving illegitimacy requires evidence of non-access,” the Court explained.
“Being forced to take a DNA test exposes an individual’s private life to public scrutiny. Such scrutiny, especially in cases involving allegations of infidelity, can severely damage a person’s reputation, social and professional standing, and mental well-being. To safeguard dignity and privacy, an individual has the right to refuse a DNA test,” the judgment stated.
Consequently, courts cannot order DNA tests to determine paternity if legitimacy is presumed, as doing so would infringe on the privacy of the man alleged to be the child’s biological father. The Court ruled that compelling an alleged paramour to undergo a DNA test would violate his dignity and privacy.
The apex court was hearing a dispute over “paternity and legitimacy” from Kerala after multiple rounds of litigation. The case was filed by a man accused of fathering a child while the mother claimed that the appellant was the biological father, despite her being married to another man at the time of the child’s birth in 2001.
After divorcing her husband in 2006, she approached the Municipal Corporation of Cochin, requesting that the appellant’s name be recorded as the child’s father, but the authorities denied her request. In 2007, she filed a suit in a munsiff court, seeking a legal declaration that the appellant was the child’s father.
However, both the munsiff Court and the Kerala High Court dismissed her plea, with the High Court upholding the decision in 2011. Both courts ruled that a valid marriage existed between the woman and her husband at the time of the child’s birth and declined to order a DNA test.
In 2015, the son approached the family court, seeking maintenance from the appellant, whom he claimed to be his biological father. The family court later ruled that the munsiff court lacked jurisdiction over the earlier suit, and its decision would not be binding on the family court.
