Legitimacy determines paternity under Section 112 Evidence Act, until the presumption is rebutted by proving ‘non-access’: SC

Supreme Court: While considering the instant appeal challenging the decision of Kerala High Court wherein it had held that the legitimacy of birth was irrelevant when considering the right of the child to receive maintenance from their biological father; the Division Bench of Surya Kant* and Ujjal Bhuyan, JJ., set aside the impugned decision of the High Court and held that legitimacy determines paternity under Section 112 of the Evidence Act, 1872, until the presumption is successfully rebutted by proving ‘non-access’. The Court also clarified that an ‘additional’ access or ‘multiple’ access does not automatically negate the access between the spouses and prove non-access thereof.

Background and Legal Trajectory:

The Respondent’s mother married one R in 1989 and in 1991 a daughter was born to them. Subsequently, in 2001, the Respondent was born, and R’s name was entered in the Municipal records as ‘father’ of the respondent. However, owing to some issues, the Respondent’s mother and R decided to file for divorce in 2006. Thereafter, the Respondent’s mother approached the Municipal Corporation of Cochin, requesting the authorities to enter the Appellant’s name in the Register of Birth, as the father of the respondent, instead of R’s name, as the mother asserted that the Respondent was begotten when she was in an extra-marital relationship with the Appellant. However, the Corporation authorities expressed that they would be able to grant such a request only if directed to do so by a court of law.

Consequently in 2007, Respondent and his mother filed a suit before the Munsiff Court seeking a decree declaring the Appellant to be the Respondent’s father. Eventually the Munsiff Court dismissed the original suit filed by the Respondent and held that there was no need to refer the parties to a DNA test as a valid marriage subsisted between the Respondent’s mother and R when the Respondent was begotten.

In view of the afore-stated order by the Munsiff Court, the Family Court closed the maintenance petition, but it imposed a condition permitting the revival of the Maintenance Petition. The Respondent and his mother once again approached the High Court, whereby the Court dismissed the second appeal in 2011 holding that when the husband and wife were living under one roof, non-access could not be pleaded as they had the opportunity for a marital, sexual relationship.

The litigation between the parties resumed in 2015 when the Respondent sought to revive the maintenance petition as he was suffering from health issues and needed financial assistance. The Family Court upon reviving the petition, impleaded R as a party respondent and observed that the Family Court, alone, had the jurisdiction to adjudicate a dispute regarding maintenance and the legitimacy of a person. The Family Court also held that Munsiff Court lacked jurisdiction to decide the original suit of 2007.

The Appellant challenged the afore-said order before the High Court and the Court via impugned judgment held that the legitimacy of birth was irrelevant when considering the right of the child to receive maintenance from their biological father and the presumption of legitimacy does not prevent an enquiry into the true paternity of a child. Thereafter, the Appellant knocked on the doors of the Supreme Court with the instant appeal.

Issues to be Considered:

• Whether the presumption of legitimacy, if not displaced, determines paternity in law?

• Whether the Civil Court had the jurisdiction to entertain the Original Suit; and accordingly, whether the Family Court was entitled to reopen the Maintenance Petition; whether the second round of litigation, initiated by the Respondent, was barred by the principle of res judicata?

Court’s Assessment:

Perusing the issue of presumption of legitimacy determining paternity in law, the Court opined that the issue hinges on two primary prongs: (i) the difference between legitimacy and paternity, and consequently, the circumstances under which the presumption of legitimacy is displaced to permit an enquiry into paternity; and (ii) the exercise of ‘balancing of interests’ and evaluating the eminent need for a DNA test.

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. “In our view, it would be possible and easy to contemplate such a situation arising, which leads us to the postulation that in a more technical sense, the terms ‘legitimacy’ and ‘paternity’ may indeed undertake different meanings”.

Examining the law governing the presumption of ‘legitimacy’ and ‘paternity’ globally and India, the Court noted that courts around the globe have recognized 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”.

Taking note of the language used in Section 112 of the Evidence Act, the Court pointed out that the language of 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 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’.

Perusing the facts of the instant case, the Court pointed out that the Respondent was begotten in 2001, his mother and R were married. In fact, they had been married since 1989 and neither had ever questioned the validity of the marriage. They were, admittedly, living under the same roof from 1989 till 2003, when they decided to separate. It is obvious that the mother and R had access to each other throughout their marriage. The Court explained that even if it is assumed that the Respondent’s mother had relations with the Appellant during her marriage and especially when the Respondent was begotten, such a fact per se, would not be sufficient to displace the presumption of legitimacy.

The Court opined that the High Court’s view that ‘paternity’ can be determined independent of the concurrent findings regarding the legitimacy of the child thus, cannot be sustained and that it is misdirected notion that that ‘paternity’ and ‘legitimacy’ are distinct or independent concepts.

Vis-a-vis Respondent’s demand for the Appellant to undergo DNA test, the Court said that in the peculiar circumstances of this case, it must undertake an exercise to ‘balance the interests’ of the parties involved and decide whether there is an ‘eminent need’ for a DNA test. Considering the right to privacy and dignity, the Court explained that while permitting an enquiry into a person’s paternity vide a DNA test, we must be mindful of the collateral infringement of privacy.

“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”.

The Court further pointed out that usually in cases concerning legitimacy, it is the child’s dignity and privacy that have to be protected. Though in the instant case, the child is a major and is voluntarily submitting himself to this test. 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 also expressed caution that the courts must also remain abreast with the effects such a probe would have on other relevant stakeholders, especially women.

The Court observed that it cannot say that there is insufficient evidence to come to a conclusion regarding the presumption of legitimacy. It is uncontested that the Respondent’s mother and R were residing together, in a valid, subsisting marriage when the Respondent was conceived. Thus, the Court opined that there seemed to be ample evidence to presume legitimacy. Therefore, the Court held that Kerala High Court erred in holding that the Respondent’s legitimate interest to know his father outweighs the infringement of the Appellant’s right to privacy and dignity.

Vis-a-vis Civil Court’s jurisdiction to decide the matter, the Court pointed out that the jurisdiction conferred upon the Family Court is for the settlement of issues arising out of matrimonial causes. This matter, therefore, cannot be construed to fall within the exclusive jurisdiction of the Family Court and was thus, rightly entertained by the Munsiff Court and subsequently, the Sub-Judge. The Court further held that the Family Court erred in reviving the Maintenance Petition and the revival was ex-facie in direct contravention with the principles of res judicata.

Therefore, taking note of the instant “convoluted case spanning over 2 decades”, the Court deemed it fit to close the matter for all intents and purposes.