GUWAHATI: The Supreme Court recently ruled that if a child is born during the subsistence of a marriage and the spouses had access to each other, the husband will be presumed to be the legal father, even if the wife claims the child was born out of an adulterous relationship.
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A Bench of Justices Surya Kant and Ujjal Bhuyan held that Section 112 of the Indian Evidence Act establishes a strong presumption of legitimacy, which can only be rebutted by proving non-access between the spouses. The court stated that ordering a DNA test in such cases would lead to privacy violations, and challenge the dignity of the alleged biological father.
The ruling came in an appeal from Kerala, where a man was accused of fathering a child born in 2001 to a married woman. The woman later divorced her husband in 2006 and sought to have the appellant’s name recorded as the father. When municipal authorities refused, she approached the courts. The munsiff court and Kerala High Court dismissed her claim, citing the presumption of legitimacy.
In 2015, the son moved the family court seeking maintenance from the appellant. The family court ruled that paternity, not legitimacy, was in question and ordered a DNA test. The Kerala High Court upheld this decision, stating that the child’s right to maintenance from his biological father took precedence over the presumption of legitimacy.
Challenging this, the appellant argued that once legitimacy is established, maintenance must be sought from the legal father, not an alleged biological father. The Supreme Court reviewed international legal positions, noting that the UK, US, and Malaysia also uphold a strong presumption of legitimacy, allowing DNA tests only in exceptional cases.
The Court finally ruled that the family court lacked jurisdiction and that maintenance proceedings against the appellant were invalid. It upheld the presumption that the child is the legitimate son of his mother's ex-husband and quashed the DNA test order.
