Paternity judgment | Understand nuances before criticising court orders

There are issues involved that need to be debated, in sober tones, like any thorny legal issue

If you are a newly married couple, it is likely the news hasn’t been kind to your spirits recently. Cynical journalists and self-styled ‘men’s rights activists’ would make it sound that married men are doomed and defenceless. Following a recent Supreme Court judgment, a media headline read: ‘Man remains legal father of child born out of wife’s adultery’. This has always been the case in India, as well as in most countries, including the United Kingdom and the United States — and for good reason.

One lawyer on a social media platform wrongly exclaimed that ‘Biology is overrated, says Supreme Court’. The court never said anything of that sort. But replies to said post are free-ranging in its abuse of the apex court, and its judges.

There are issues involved that need to be debated, in sober tones, like we’d debate any thorny legal issue. So, let’s look at the facts of the case.

A couple have a son in 2001, their second child, after about 12 years of marriage. Two years later they jointly file for divorce, which is finalised in due course. The paternity of the child isn’t ever questioned. On records, the father is, and continues to be, the father of the child. Pertinently, no maintenance is claimed from or awarded to be paid by the husband/father.

After the divorce, the mother claims that the child was born from a relationship with another person (alleged lover), and requests the municipal corporation to change the records to reflect the name of the ‘father’ she has now named. When the corporation refuses, she approaches the court for a declaration that the alleged lover is the father of the child. In case you’re wondering, the alleged lover has never admitted to the paternity, or even the affair with the mother.

The apex court, and appellate courts, refuse her request. Firstly, Section 112 of the Evidence Act grants the presumption of legitimacy — that a child born during a marriage (or within a period of nine months after) was born to the husband, unless it can be proved that the husband did not have access to the wife (we’ll come to the reasoning, and the flaw in reasoning, a little later) during that period.

Secondly, the father, who the law presumes to be the father, has not questioned his paternity. Of course, its pertinent to argue here that he did not have any reason to question the paternity, since he didn’t have any monetary, or other, obligation towards the child – at least at that point. A request to conduct a DNA test on the ‘biological father’, or the alleged lover, was also denied.

The story would have ended there, except, the child allegedly developed health issues, and needing surgeries, approached the court again, seeking maintenance from the alleged lover (It’s a rookie mistake because the principle of Res Judicata in law means that a legal dispute having been settled, cannot be revived again. The child could have sustained a case against the father, but his case against the biological father/alleged lover had no legs whatsoever to stand on). It is this case that went all the way to the Supreme Court and resulted in this judgment.

All this to say that the Supreme Court could not have possibly ruled in a different way. Any outrage, especially by people who ought to know better, only reeks of ignorance, or malice — possibly both.

It’s easy to criticise a judgment, but as often, one only needs to ask about the consequences of the alternate. What happens if the presumption of legitimacy did not exist? Would every child not be subject to the cloud of illegitimacy? If strained relations between parents were not a cause of torment for children, imagine what questioning of paternity in divorce proceedings do. To repeat, the presumption of legitimacy is found in most countries.

Neither can it be advisable for any person to have to prove their innocence in such cases. If you’ve worked anywhere near the periphery of law, you will have no doubt that each application of a legal principle will be based on an idiosyncratic set of facts, which will likely be either amusing or infuriating, unless you are directly affected, in which case it is undeniably harrowing. Just imagine a person having to prove their innocence, because a suspicious husband identifies him as likely having had an affair with his wife!

Even worse, what happens if a paternity test doesn’t confirm paternity by anybody — what becomes of the child? (your answer here can’t just be blaming an adult’s choices or lifestyle, and shrugging your shoulders; the child was not responsible)

Having said that, there are legitimate issues that require sober discussion. The presumption of legitimacy ostensibly protects the mother and the child from wanton accusations. But what if the mother and/or the child claims the illegitimacy, as in this case? Should the court bind its own hands?

What happens if a couple are discussing a divorce, maybe on grounds of adultery, when a child is conceived. Would a husband contemplating divorce be forced to pre-emptively distance himself entirely, out of abundant caution? To extend that argument, will this be a new line of attack for husbands who want to pressurise wives in divorce proceedings?

(Abraham C Mathews is an advocate practising in the Supreme Court.)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.