Husband presumed to be legal father of child despite wife's adultery: Supreme Court

The Supreme Court recently ruled that when a marriage is subsisting between a man and a woman and they had access to each other, then the man (husband) would be deemed to be the legal father of the child born to the woman even if she claims that the child was born out of her adulterous relationship with another man..A Bench of Justices Surya Kant and Ujjal Bhuyan held that Section 112 of the Indian Evidence Act presumes such legitimacy and it is up to the person who claims illegitimacy to prove the same through 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 evidence to presume legitimacy, courts cannot order a DNA test to determine paternity since it will infringe the privacy of the man (alleged to be the paramour) to whom the wife has allegedly attributed the paternity of her son.Forcing the alleged paramour to undergo such a DNA test will be violative of his privacy and dignity, the Court said."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 conflict involving "paternity and legitimacy" made its way to the Supreme Court from Kerala after several rounds of litigation.The appeal before the Supreme Court was filed by the man (appellant) who was accused of fathering the child. The child's mother had claimed that the child was fathered by the appellant during the subsistence of her marriage to another person. The woman in question was married to another person when the child was born in 2001. The child's mother claimed that the child was fathered by the appellant.She later got divorce from the husband in 2006 and approached the Municipal Corporation of Cochin, requesting them to enter the appellant's name as father of the child but the authorities refused.She then filed a suit before a munsiff court in 2007 seeking a declaration that the appellant is the father of the child. The said plea was dismissed by the munsiff court and later the Kerala High Court in 2011. Both the courts concluded that there was a valid marriage subsisting between the woman and her husband at the relevant time. The courts also declined to order a DNA test. Later in 2015, the son moved the family court claiming maintenance from the appellant alleged to be his biological father. The family court then ruled that the munsiff court did not have the jurisdiction to entertain the earlier suit and its order would not bind the family court.The family court further said that an application for maintenance was not about legitimacy but paternity and hence the earlier orders of munsiff court and Kerala High Court would not bar the family court from determining paternity using DNA test.The Kerala High Court upheld the family court decision and held that the legitimacy of birth was irrelevant when considering the right of the child to receive maintenance from their biological father. It also held that the presumption of legitimacy does not prevent an enquiry into the true paternity of a child. This led to the appeal before the Supreme Court by the man alleged to have fathered the child..Arguments.Senior Advocate Romy Chacko, appearing for the appellant, argued that when legitimacy is established, the child can claim maintenance only from his ‘legitimate’ father, not a third-party, whom he claims to be his biological father. Consequently, under such circumstances, the appellant could not have been ordered to undergo a DNA test.Senior Advocate Shyam Padman, appearing for the respondent-son, argued that ‘paternity’ and ‘legitimacy’ are distinct concepts and while legitimacy can be determined through a legal presumption, paternity is a matter of science. Thus, a civil suit concerning the presumption of legitimacy under Section 112 would not have any bearing on the determination of ‘paternity.’ Further, he argued that it is in the best interests of the child that the appellant undergoes a DNA test, as the child has the right to know his real parentage and accrue the rights emanating from the same.Since maintenance can only be decided by the Family Court, under explanation (f) of Section 7 of the Family Courts Act, 1984, it is well within its jurisdiction to also determine paternity when posed with the question of maintenance, Padman contended..Judgment.The Supreme Court after considering the arguments examined the position of law in United States, United Kingdom and Malaysia. All these three jurisdictions maintain a strong bias towards the presumption of legitimacy of the child, the Court noted."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.With respect to India, the Court said Section 112 of the Indian Evidence Act expressly creates a strong presumption in favour legitimacy.Further, Indian courts have sanctioned the use of DNA testing, but sparingly, the apex court said.When ordering such tests, the privacy and dignity of the person accused of fathering the child will also have to be considered, the Bench opined. "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 enquiry into a person’s private life by allowing the parties to bring evidence on record to prove non-access to dislodge the presumption of legitimacy. When the law provides for a mode to attain a particular object, that mode must be satisfied. When the evidence submitted does not rebut this presumption, the court cannot subvert the law to attain a particular object, by permitting a roving enquiry into a person’s private life such as through a DNA test, the apex court ruled..As regards the jurisdiction of the civil court, the Supreme Court said that the jurisdiction conferred upon the family court is for the settlement of issues arising out of matrimonial causes. A matrimonial cause essentially relates to the rights of marriage between a husband and wife. In the instant case, there is no claim regarding the marital relationship and hence, 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..In view of the above findings, the Court set aside the family court order and quashed the maintenance proceedings before the family court.It also held that the respondent is presumed to be the legitimate son of his mother's ex-husband. .[Read Judgment]