Paternity v Legitimacy: Section 112 of the Indian Evidence Act, 1872

The Supreme Court of India in the case of Ivan Rathinam v Milan Joseph (2025 SCC OnLine SC 175) considered whether the presumption of legitimacy with respect to a child born during a valid marriage as per Section 112 of the Indian Evidence Act, 1872 (“Evidence Act”) determines paternity in law.

The facts of the case revolved around the marriage of Mr X and Mrs Y, who got married in 1989, had a daughter born from their marriage in 1991 and then, had a son born during their marriage in 2001 (“Master A”). Upon the birth of Master A, Mr X’s name was entered as the father in the ‘Register of Births’ maintained by the Municipal Corporation of Cochin (“ROB”). After a few years from the birth of Master A, Mr X and Mrs Y jointly applied for divorce, which was granted in 2006 (“Divorce”).

Post the Divorce, Master A and Mrs Y approached the Municipal Corporation of Cochin to enter the name of Mr J, in the ROB, as the father of Master A (instead of Mr X) (“Application”). The Application was made on the basis that Mrs Y had been involved in extra-marital relations with Mr J, due to which Master A was begotten. However, the Municipal Corporation of Cochin held that the Application could only be accepted if they were so directed by a Court of law.

Consequently, Master A and Mrs Y filed an original suit before the First Additional Munsiff Court, Ernakulam (“Munsiff Court”) to declare Mr J as the father of Master A (“Original Suit”). The Munsiff Court directed Mr J to undergo a paternity test in 2007 (“Munsiff Court Order”). In addition to the Original Suit, Master A filed a petition seeking maintenance from Mr J under Section 125 of the Code of Criminal Procedure 1973 (“CrPC”) before the Family Court, Alappuzha (“Family Court”) on the ground that Mr J was his biological father (“Maintenance Petition”).

In this backdrop, Mr J challenged the Munsiff Court order before the Kerala High Court (“Writ Petition”). The Kerala High Court on March 18, 2008 disposed of the said Writ Petition, set aside the Munsiff Court Order and requested the Munsiff Court to reconsider its order in light of relevant judgments on the issue (“HC Order”). Mr J then challenged the HC Order by a review petition (“Review Petition”). The Kerala High Court on July 3, 2008 allowed the Review Petition, while clarifying that the paternity test cannot be allowed unless relevant evidence has been submitted (“Review Petition Order”).

Based on the Review Petition order, Master A and Mrs Y filed a Special Leave Petition challenging the Review Petition order (“SLP”). The SLP was also dismissed. Thereafter, the Munsiff Court dismissed the Original Suit on October 15, 2009 (“2009 Order”). Based on the 2009 order, the Maintenance Petition was also closed by the Family Court on February 5, 2010 (“2010 Order”).

Master A and Mrs Y then filed a First Appeal before the Additional Sub-Judge, Ernakulam, challenging the 2009 Order – which was then dismissed on February 21, 2011 (“First Appeal”). Master A and Mrs Y then filed a Second Appeal before the Kerala High Court challenging the First Appeal, which was also dismissed on October 8, 2011 (“Second Appeal”).

In 2015, an application was filed by Master A before the Family Court to revive the Maintenance Petition / 2010 Order. Master A was facing various health issues and had undergone several surgeries, and Mrs Y was not able to afford the medical expenses. The Family Court allowed the Maintenance Petition to be revived (“Family Court Order”). In this regard, the Family Court held that a proceeding for maintenance under Section 125 of the CrPC does not concern legitimacy and thereby, the Family Court was not constrained from determining the question of paternity.

Thereafter, Mr J challenged the Family Court Order before the Kerala High Court. The Kerala High Court, by its judgment dated May 21, 2018 (“2018 Order”) held that legitimacy was irrelevant to determine maintenance under Section 125 of CrPC; the presumption of legitimacy does not prevent an enquiry into paternity and paternity and legitimacy operate in different spheres.

As discussed above, based on the response received by the Municipal Corporation of Cochin, Master A and Mrs Y applied in the Original Suit, for a direction to Mr J to undergo a paternity test to prove his paternity. Similarly, the Kerala High Court in the 2018 order held that presumption of legitimacy does not prevent an enquiry into paternity.

In this regard, the Supreme Court of India considered the question as to under what circumstances can a Court order a paternity test and if legitimacy amounted to paternity under law. This is especially relevant considering that applicable law provides that a child is considered conclusively legitimate if born during the subsistence of marriage – unless rebutted by proof reflecting non-access between the couple during such period in which the child was conceived.

Thus, the Supreme Court of India in determining whether presumption of legitimacy determines paternity clarified that scientifically and technically, a legitimate child born during the subsistence of a valid marriage between two persons, may not always be the biological child of the couple.

However, and in order to answer the question regarding presumption of legitimacy determining paternity, the Supreme Court of India relied upon Section 112 of the Evidence Act, which provides that any person born either: (i) during the continuance of a valid marriage between his mother and any man; or (ii) within 280 (two hundred and eighty) days after its dissolution, and the mother remaining unmarried shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been conceived (“Non-Access Principle”).

Based on the Non-Access Principle, 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 principle provides that conclusive proof of legitimacy is equivalent to paternity. The objective of the Non-Access 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 by showing non-access.

The Supreme Court of India clarified that the extra-marital relationship of Mrs Y with Mr J only proved simultaneous conjugal intimacy with Mrs Y, by both Mr X and Mr J. However, it does not conclusively establish the absence of conjugal relations between Mrs Y and Mr X and thereby, does not prove non-access. In light of the same, the Court held that based on the statutory mandate, Master A would be presumed to be the son of Mr X.

In respect to seeking a paternity test, the Supreme Court of India relied on the ‘right to privacy’, which includes, at its core, the preservation of personal intimacies, the sanctity of family life, the institution of marriage, procreation, the home, and sexual orientation. The Court observed that permitting an enquiry into a person’s paternity vide a paternity test would lead to infringement of such right to privacy and consequently, of life and personal liberty as embodied in Article 21 of the Constitution.

The law only permits an enquiry into the legitimacy of a child by allowing the parties to place such evidence to prove that there was no access between the spouses. Only if such Non-Access Principle is satisfied can the presumption of parentage be rejected. If the evidence placed does not prove the Non-Access Principle, then a petition cannot be filed to seek a paternity test and subvert the provisions of the Evidence Act and the principles enshrined under Article 21 of the Constitution.

Thus, the Supreme Court of India concluded that Master A is the legitimate son of Mr X, as he was born during the marriage of Mr X and Mrs Y. In light of the same, the Supreme Court set aside the Family Court order and the 2019 High Court order.

About the authors: Sachin Bhandawat is a Partner and Vatsal Singh is a Senior Associate at Khaitan & Co.

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