A child born out of a valid marriage is presumed to be the legitimate offspring of the couple unless the presumption is successfully rebutted by proving that the husband and wife did not have access to each other during the subsistence of their relation, the Supreme Court reiterated Tuesday.
A bench of Justices Surya Kant and Ujjal Bhuyan said this while disallowing the plea of a woman and her son seeking DNA test of a man she claimed was the boy’s real father.
The woman had a girl child from her marriage in 1991. She had a son in 2001 and the husband’s name was entered as the “father” of the boy in the Register of Birth maintained by the Municipal Corporation of Cochin. The couple started living separately in 2003 owing to differences between them. Shortly thereafter, they moved a joint application for divorce, which was granted by a family court in 2006. She then approached the municipal corporation requesting the authorities to enter another man’s name as “father” in the birth register, claiming she had an extramarital affair with the other man and he was the boy’s biological father. The corporation, however, said it would be able to do so only if directed by a court of law.
Several rounds of litigation followed and the matter ultimately reached the Supreme Court which on Tuesday dismissed the argument of the woman and her son that legitimacy and paternity are distinct concepts requiring separate determination. The court held that “legitimacy determines paternity under Section 112 of the Indian Evidence Act, 1872, until the presumption is successfully rebutted by proving ‘non-access’”.
Writing for the bench, Justice Surya Kant said the language of Section 112 of Evidence Act “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 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.”
Deciding the appeal filed by the man whom the woman claimed was her son’s biological father (appellant), the top court spoke of the need to balance interests in such cases.
“When dealing with the eminent need for a DNA test to prove paternity, this court balances the interests of those involved and must consider whether it is possible to reach the truth without the use of such a test. First and foremost, the courts must, therefore, consider the existing evidence to assess the presumption of legitimacy. If that evidence is insufficient to come to a finding, only then should the court consider ordering a DNA test. Once the insufficiency of evidence is established, the court must consider whether ordering a DNA test is in the best interests of the parties involved and must ensure that it does not cause undue harm to the parties…,” the judgment said.
It added that “on 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”, the SC said.
Touching on the need to protect privacy, it said that “permitting an enquiry into a person’s paternity vide a DNA test, we must be mindful of the collateral infringement of privacy and consequently, of life and personal liberty as embodied in Article 21 of the Constitution”.
The bench said that “forcefully undergoing a DNA test would subject an individual’s private life to scrutiny from the outside world. That scrutiny, particularly when concerning matters of infidelity, can be harsh and can eviscerate a person’s reputation and standing in society. It 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 SC said that “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.” It 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.”
Justice Surya Kant sought to remind that courts “must also remain abreast with the effects such a probe would have on other relevant stakeholders, especially women. Casting aspersions on a married woman’s fidelity would ruin her reputation, status, and dignity; such that she would be castigated in society”.
It said, “Though in this case, the respondent’s mother is actively associated in propagating this vexatious litigation, 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.”
Appearing for the appellant, senior advocate Romy Chacko contended that since the other side had failed to prove non-access between the spouses when the son was begotten, there is conclusive proof that the boy is the legitimate child of the former husband.
The bench said that “forcefully undergoing a DNA test would subject an individual’s private life to scrutiny from the outside world (Source: Express Archives) 
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