The Himachal Pradesh High Court has held that if a couple is having access to each other, it is conclusive proof of the legitimacy of a baby and hence, the presumption under Section 112 of the Indian Evidence Act, 1872 gets attracted.

A Single Bench of Justice Jyotsna Rewal Dua asserted, “In view of the evidence on record, it is evident that the couple had access to each other. The husband has not even denied access to his wife in his pleadings to the divorce petition. He has specifically admitted having access to his wife while appearing as PW-1 and further that he used to stay with his wife during weekends. Thus, the presumption under Section 112 of the Indian Evidence Act gets attracted. The baby was born to the couple having access to each other and during subsistence of valid marriage between them. It is conclusive proof of baby’s legitimacy.”

The Bench also held that if a party to a marriage establishes that there was no access to the party to the marriage, then the shield of conclusive proof becomes unavailable.

“Unless the absence of access is established, the presumption of legitimacy cannot be displaced. Where the husband and wife have co-habited together and no impotency is proved, the child born from their wedlock is conclusively presumed to be legitimate, even if the wife is shown to have been, at the same time, guilty of infidelity”, said the Court.

Senior Advocate Sudhir Thakur appeared on behalf of the petitioner/husband while Advocate Peeyush Verma appeared for the respondent/wife.

In this case, in the divorce proceedings pending between the petitioner and the respondent under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, the husband moved an application for conducting a Deoxyribonucleic Acid (DNA) test of the child and the parties. The application was dismissed by the District Judge (Family Court), Shimla, H.P., and therefore, the petitioner sought to assail such an order in his petition before the High Court.

The High Court in view of the facts and circumstances of the case observed, “Indian law leans towards legitimacy and frowns upon bastardy. The presumption in law of legitimacy of a child cannot be lightly repelled. … The fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a child. The operation of conclusive presumption under Section 112 can be avoided by proving non-access at the relevant time.”

The Court noted that as per Section 112 of the Evidence Act, once the party questioning the legitimacy of the birth of a child shows that the parties to the marriage had no access to each other, then, the benefit of this Section is not available to the party invoking it.

“While appearing in the witness box as RW-1, the respondent-wife has admitted the suggestion given to her that her son was born to her and her husband (petitioner). This question put to the wife indicates that husband admits the child to be his progeny”, the Court further noted.

The Court said that the paternity of the child cannot be allowed to be ascertained in the manner sought by the petitioner.

“It is for the petitioner to prove his allegations of cruelty and desertion against the respondent (wife) on the strength of evidence adduced by him. He cannot be allowed to fill up the lacuna, if any, in his evidence by seeking to conduct the DNA test of the child and the parties”, concluded the Court.

Accordingly, the Court dismissed the petition.

Cause Title- Anil Kapoor v. Dipika Chauhan

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