Husband remains legal father of child born out of wife’s adultery: Supreme Court

New Delhi: The Supreme Court on Tuesday said that an order necessitating a DNA test based on mere allegations of adultery, would ultimately violate the man right to dignity and privacy.

A bench of Justices Surya Kant and Ujjal Bhuyan, while referring to Section 112 of the Indian Evidence Act, said that 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 court said.

"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 bench said.

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, the court said.

In a judgment, the top court rejected the Kerala High Court’s view that ‘paternity’ can be determined independent of the concurrent findings regarding the legitimacy of the child, saying such a view cannot be sustained.

The court said the challenge raised before the High Court that ‘paternity’ and ‘legitimacy’ are distinct or independent concepts is a misdirected notion.

It allowed a man's plea against the HC's 2018 order which upheld a family court's 2015 order, reviving maintenance claim of a 23-year-old youth against him. The youth claimed he was begotten by the appellant out of her mother's extra marital relationship in 2001 during the subsistence of her marriage. The appellant, on his part, vehemently denied it.

The court said that scientifically and technically, a legitimate child, i.e. one born during the subsistence of a valid marriage between two persons, may not always be the biological child of the persons in the marriage.

It said courts around the globe recognised the theoretical difference in ‘paternity’ and ‘legitimacy’ to the extent that in the Venn diagram of paternity and legitimacy, legitimacy is not an independent circle, but is entombed within paternity.

"The advent of scientific testing has made it much easier to prove that a child is not a particular person’s offspring. To this end, Indian courts have sanctioned the use of DNA testing, but sparingly," the bench said.

For a person to rebut the presumption of legitimacy, he must first assert non-access which, in turn, must be substantiated by evidence, the court pointed out.

It is only when such an assertion is made, that the court can consider the question of ordering a DNA test to establish paternity, the bench added.

In the case, the bench said, it is an admitted fact that when the respondent was begotten in 2001, his mother was married with her husband, lived under the same roof from 1989 till 2003, when they decided to separate. It is, but obvious, that the respondent’s mother and her husband had access to each other throughout their marriage.

"Even if it is assumed that the respondent’s mother had relations with the appellant, such a fact per se, would not be sufficient to displace the presumption of legitimacy," the bench said.

In such cases, the bench said the court must undertake an exercise to ‘balance the interests’ of the parties involved and decide whether there is an ‘eminent need’ for a DNA test.

"A person can exercise his right to privacy in order to protect his right to dignity and vice-versa. Together, these rights protect an individual’s ability to make the most intimate decisions regarding his life, including sexual activity, whether inside or outside the confines of marriage," the bench said.

Forcefully undergoing a DNA test 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 bench said.

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 bench said.

Moreover, the respondent is already declared to be the legitimate son of his mother's husband.

"The fishing enquiry...is predominantly targeted to harm the appellant’s reputation. The respondent knows well who is his ‘father’ as per the law," the bench said.

Though in this case, the respondent’s mother is actively associated in propagating this vexatious litigation, the bench said, one can only imagine the repercussions in other cases where a child, in utter disregard to the sentiments and self-respect of their mother, initiates proceedings seeking a declaration of paternity.

"The conferment of such a right can lead to its potential misuse against vulnerable women. They would be put to trial in a court of law and the court of public opinion, causing them significant mental distress, among other issues. It is in this sphere that their right to dignity and privacy deserve special consideration," the bench said.