Paternity and the law: India
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Judgements of the higher courts
Infidelity no basis to seek paternity test / SC, 2023
AmitAnand Choudhary, February 22, 2023: The Times of India
New Delhi : In an important ruling to protect the rights of children whose paternity is questioned in a matrimonial dispute between parents, the Supreme Court has ruled that when husband and wife cohabited together, and no impotency is proved, then the child born from their wedlock is “conclusively presumed to be legitimate”, even if the wife is guilty of infidelity and in such cases DNA test of child is not to be done.
Expressing concern over the interest and wellbeing of child being sacrificed by parents in their legal battle and father often demanding paternity test to prove infidelity of wife, a bench of Justices V Ramasubramanian and BV Nagarathna said Section 112 of the Evidence Act presumes legitimacy of a child born out of a valid marriage and DNA test can be directed onlywhen a man proves non-access to his wife.
“Thus, where the husband and wife have cohabited 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. 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. Therefore, shreds of evidence to the effect that the husband did not have intercourse with the wife at the period of conception, can only point to the illegitimacy of a child born in wedlock, but it would not uproot the presumption of legitimacy under Section 112,” Justice Nagarathna, who wrote the main judgment for the bench, said.
Justice Ramasubramanian, in his separate but concurrent verdict, said, “We are not suggesting for a moment that Section 112 acts as ashield even for the alleged adulterous conduct on the part of the wife. All we say is that anything that would destroy the legal effect of Section 112 cannot be used by the respondent, on the ground that the same is being done to achieve another result”.
The court passed the order on a plea filed by a woman challenging orders passed by family court and Bombay high court which directed paternity test of her child on an adulterous allegation levelled by her husband who wanted divorce. The apex court set aside the orders and held that it was not a fit case for paternity test as the husband had not raised the issue of non-access to his wife
