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.
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.
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.
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 court said 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.
Title: Ivan Rathinam vs. Milan Joseph
