Presumption That Husband Is Father Of Child Born During Marriage Not Displaced Even If Wife Had Relations With Another Man : Supreme Court

The Supreme Court today (January 28) reaffirmed that a child's legitimacy determines paternity, emphasizing that a child born during a valid marriage is presumed to be the legitimate offspring of parents who had access to each other at the time of conception. The Court dismissed the argument that legitimacy and paternity are distinct concepts requiring separate determination. It held that legitimacy and paternity are inherently intertwined, as the legitimacy of a child directly establishes paternity. The Court clarified that if it is proven that the married couple had access to each other at the time of the child's conception, the child is deemed legitimate, thereby establishing the paternity of the couple. “The language of the provision (S. 112 of Evidence Act) 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 said. A bench of Justices Surya Kant and Ujjal Bhuyan heard a case where the Respondent and his mother claimed the Appellant to be his biological father, despite the Respondent being born during his mother's marriage to another person (RK). The Respondent filed a civil suit seeking a paternity declaration, but it was dismissed, upholding the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872, in favor of RK. Despite a concurrent finding by multiple courts upholding the presumption of legitimacy under Section 112, the family court revived the Section 125 Cr.P.C. maintenance plea filed by the Respondent against the Appellant which was halted earlier. Following the High Court's approval of the revival of the Section 125 Cr.P.C. maintenance plea against him, the Appellant appealed to the Supreme Court. Before the Supreme Court, the Appellant contended that a maintenance plea under Section 125 Cr.P.C. could not be held to be maintainable against him because he never cohabited with the Respondent's mother, and had no access to her during the Respondent's conception. He further argued that he could not be subjected to a DNA test because a DNA test is permitted only when a strong prima facie case is made, proving non-access between spouses. Since the Respondent's mother and RK had complete access to each other at the time of the Respondent's conception, therefore forcing him to undergo a DNA test would violate his right to privacy. Per contra, the Respondent contended that legitimacy and paternity are different concepts, where proof of a child's legitimacy could not prove the paternity of the spouses. After hearing both the parties at length, the judgment authored by Justice Kant rejected the Respondent's contention that paternity and legitimacy are distinct concepts. The Court said that once it is proved that the child is born out of wedlock during the subsistence of a valid marriage then the child is presumed to be a legitimate child under Section 112 of the Evidence Act, and the parents of the child attains his paternity. The Court emphasized the legal principle that legitimacy presumes paternity unless conclusively rebutted by proving non-access between spouses. Mere allegations of adultery or simultaneous access are insufficient to rebut the presumption. The Court ruled that even if both the Appellant and RK had simultaneous access to the Respondent's mother, it would not suffice to establish the Appellant as the Respondent's biological father when access between RK and the Respondent's mother is proven. The Court clarified that the presumption of legitimacy can only be rebutted by proving non-access, which signifies the impossibility—not merely the inability—of the spouses to have marital relations. “In the case at hand, it is an admitted fact that when the Respondent was begotten in 2001, his mother and RK were married. In fact, they had been married since 1989 and neither had ever questioned the validity of the marriage. They were, admittedly, living under the same roof from 1989 till 2003, when they decided to separate. It is, but obvious, that the Respondent's mother and Mr. RK had access to each other throughout their marriage. This conclusion has been arrived at through concurrent findings of all the courts involved, at multiple stages of litigation. Even if it is assumed that the Respondent's mother had relations with the Appellant during her marriage and especially when the Respondent was begotten, such a fact per se, would not be sufficient to displace the presumption of legitimacy. The only thing that such an allegation sheds light on is the fact that there seems to have been simultaneous access...

Presumption That Husband Is Father Of Child Born During Marriage Not Displaced Even If Wife Had Relations With Another Man : Supreme Court

Yash Mittal

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