Legitimacy determines paternity of child, rules SC

If it’s 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 Supreme Court ruled on Tuesday.

Deciding a two-decade-old case in which a 23-year-old man from Kerala claimed that his birth was the result of his mother's extramarital affair and wanted his paternity proved through a DNA test, the top court said there was a need to balance the son's right to know his true parentage with the right to privacy of the man he claimed to be his biological father.

Rejecting his claim, a Bench led by Justice Surya Kant said, “Legitimacy determines paternity under Section 112 of the Indian Evidence Act, 1872, until the presumption is successfully rebutted by proving ‘non-access’.”

According to Section 112, “The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, 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 begotten.”

"On the one hand, courts must protect the parties' rights to privacy and dignity by evaluating whether the social stigma from one of them being declared 'illegitimate' would cause them disproportionate harm. On the other hand, courts must assess the child's legitimate interest in knowing his biological father and whether there is an eminent need for a DNA test," said the top court.

In this case the man’s mother and father were legally wedded husband and wife when he was born. However, his mother claimed he was born out of her extra-marital affair with another man. After getting divorce from her husband, she wanted her paramour’s name to be entered in records as her child’s father. She also filed multiple petitions at various levels seeking a direction to her paramour to undergo a paternity (DNA) test.

The Kerala High Court on May 21, 2018 held that the legitimacy of birth was irrelevant when considering the right of the child to receive maintenance from his biological father; the presumption of legitimacy does not prevent an enquiry into the true paternity of a child; and since ‘paternity’ and ‘legitimacy’ operate in different spheres, a declaration on the legitimacy of a child by a Civil Court would not impede an enquiry into ‘paternity’ by the Family Court, for the purpose of determining maintenance.

However, the top court said, “It is well-established that access and non-access under Section 112 do not require a party to prove beyond reasonable doubt that they had or did not have sexual intercourse at the time the child could have been begotten. ‘Access’ merely refers to the possibility of an opportunity for marital relations…in such a scenario, while parties may be on non-speaking terms, engaging in extra-marital affairs, or residing in different houses in the same village, it does not necessarily preclude the possibility of the spouses having an opportunity to engage in marital relations.”