Legitimacy Determines Paternity U/S 112 Evidence Act Until Presumption Is Successfully Rebutted By Proving ‘Non-Access’: Supreme Court
The Apex Court allowed a Criminal Appeal preferred against the Judgment of the Kerala High Court which upheld the Family Court’s Order, reviving a Maintenance Petition.
The Supreme Court held that the legitimacy determines paternity under Section 112 of the Indian Evidence Act, 1872 (IEA), until the presumption is successfully rebutted by proving ‘non-access’.
The Court was deciding a Criminal Appeal preferred against the Judgment of the Kerala High Court which upheld the Family Court’s Order, reviving a Maintenance Petition.
The two-Judge Bench comprising Justice Surya Kant and Justice Ujjal Bhuyan observed, “This convoluted case, spanning over two decades, has no doubt taken its toll on the parties involved and other relevant stakeholders. Given these extenuating circumstances, at this stage, it must be closed for all intents and purposes. … Legitimacy determines paternity under Section 112 of the Indian Evidence Act, 1872, until the presumption is successfully rebutted by proving ‘non-access’.”
The Bench also observed that the Family Court cannot entertain any proceedings for a declaration of legitimacy without a claim on the marital relationship.
Senior Advocate Romy Chacko appeared on behalf of the Appellant while Senior Advocate Shyam Padman appeared on behalf of the Respondent.
Facts of the Case
The Respondent (child) was born in 2001 to a mother who was married to one Raju. The mother claimed the child was fathered by the Appellant. The Respondent and mother filed a Suit seeking a declaration that the Appellant was the Respondent's father. The Munsiff Court directed the Appellant to undergo a DNA test, which was later set aside by the High Court. The Respondent filed a Maintenance Petition under Section 125 of the Criminal Procedure Code (CrPC). The Munsiff Court dismissed the Original Suit, and the Family Court closed the Maintenance Petition. The Respondent and Mother filed an Appeal against the Munsiff Court's decision but the same was dismissed.
Thereafter, a Second Appeal was filed before the High Court but it was also dismissed. In 2015, the Respondent filed an Application to revive the Maintenance Petition. The Family Court revived the said Petition and allowed Raju to be impleaded as a party Respondent. The Appellant challenged this Order before the High Court and the Court held that the legitimacy of birth was irrelevant when considering the right of the child to receive maintenance from their biological father. The Court also held that the Civil Courts lacked jurisdiction to determine the legitimacy of the Respondent. Therefore, the Appellant approached the Apex Court.
Reasoning
The Supreme Court in the above regard, noted, “We are of the considered view that this issue hinges on two primary prongs requiring detailed analysis: (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 enunciated 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”, it added.
Furthermore, the Court noted that in the Venn diagram of paternity and legitimacy, legitimacy is not an independent circle, but is entombed within paternity and after adverting to the position of ‘paternity’ and ‘legitimacy’ in various foreign jurisdictions, it is imperative to evaluate the position in India in light of the unique factual matrix of the Appeal.
“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”, it said.
The Court was of the view 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 and 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.’
“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. To put it more simply, 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”, it also explained.
The Court further elucidated that non-access means the impossibility, not merely inability, of the spouses to have marital relations with each other and for a person to rebut the presumption of legitimacy, they must first assert non-access which, in turn, must be substantiated by evidence.
“In our considered opinion, the challenge raised before the High Court that ‘paternity’ and ‘legitimacy’ are distinct or independent concepts is a misdirected notion and is liable to be rejected. 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”, it held.
Moreover, the Court emphasised 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 and on the other hand, they must assess the child’s legitimate interest in knowing his biological father and whether there is an eminent need for a DNA test.
“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”, it also remarked.
The Court observed that an Order necessitating a DNA test based on mere allegations of adultery, would ultimately violate the Appellant’s right to dignity and privacy. It reiterated that the Family Court has exclusive jurisdiction over a suit or proceeding for a declaration as to the legitimacy of a person.
“The jurisdiction conferred upon the Family Court is for the settlement of issues arising out of matrimonial causes. A matrimonial cause essentially relates to the rights of marriage between a husband and wife. … 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”, it further said.
The Court explained that ‘Res judicata’ infuses predictability in legal adjudication and the Courts are thus, under a bounden duty to enforce this statutory embargo where the facts of the case overwhelmingly satisfy the ingredients of Section 11 of the CPC.
“Given our understanding of the commonalities shared by the aspects of legitimacy and its effects on maintenance issues, there is no gainsaying that these particular subject matters are interdependent. In such a scenario, the Family Court at a later point in time could not have revived the Maintenance Petition, simply under the guise that the issue of maintenance would be entirely divorced from an analysis of the issue of legitimacy, such that they could be examined in distinct silos”, it concluded.
The Court added that the Munsiff Court and the Sub-Judge Court possessed jurisdiction to entertain the Original Suit, which dealt with the question of the legitimacy of the Respondent.
Accordingly, the Apex Court allowed the Appeal, quashed the proceedings before the Family Court, and presumed the Respondent to be the legitimate son of Raju.
Cause Title- Ivan Rathinam v. Milan Joseph (Neutral Citation: 2025 INSC 115)
Appearance:
Appellant: Senior Advocate Romy Chacko, AOR Anup Kumar, Advocates Shruti Singh, Ashwin Romy, and Sachin Singh Dalal.
Respondent: Senior Advocate Shyam Padman, AOR Naresh Kumar, Advocates Mukund P Unny, and Piyo Harold.
