Presumption of Legitimacy of a Child Born in a Wedlock

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Presumption of legitimacy of a child

Section 116: Conclusive proof of legitimacy

• The fact that a person was born
  • during continuance of a valid marriage between his mother and any man or
  • within 280 days after its dissolution, the mother remaining unmarried…
• shall be conclusive proof that he is the legitimate son of that man…
  • unless it can be shown
  • that parties to the marriage had no access to each other at any time when he could have been begotten

This section is based on the maxim

The law presumes that every person born in wedlock is legitimate, but it is a rebuttable presumption of law.

The evidence of non-access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.

The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case.

Even proof that the mother committed adultery with any number of men will not of itself suffice for proving the illegitimacy of the child.

Question

What is required to dislodge the presumption?

Ans:

• This section requires the party disputing the paternity to prove non-access in order to dispel the presumption.
• “Non-access” means non-existence of opportunities for sexual intercourse; it does not refer to actual cohabitation.

Question

Whether DNA test can be ordered in divorce proceedings?

Ans:

Yes

Dipanwita Roy v. Ronobroto Roy: 2014 SC

Facts of the case

A petition was filed u/s 13 of the Hindu Marriage Act by the respondent, inter alia, seeking dissolution of the marriage solemnised between the petitioner-wife and the respondent-husband, on 25.1.2003.

One of the grounds for seeking divorce was, based on the alleged adulterous life style of the wife.

In order to substantiate his claim, in respect of the infidelity of the wife, and to establish that the son born to her was not his, the husband moved an application on 24.7.2011 seeking a DNA test of himself and the male child born to the wife.

The question that arises for consideration in the present appeal pertains to the alleged infidelity of the appellant-wife.

It is not the husband’s desire to prove the legitimacy or illegitimacy of the child born to the appellant. The purpose of the respondent is to establish the ingredients of Section 13(1)(ii) of the Hindu Marriage Act.

There can be no doubt, that the prayer made by the respondent for conducting a DNA test of the appellant’s son as also of himself, was aimed at the alleged adulterous behaviour of the appellant.

In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved.

In the determination of the issue in hand, undoubtedly, the issue of legitimacy will also be incidentally involved.

In our view, but for the DNA test, it would be impossible for the husband to establish and confirm the assertions made in the pleadings.

DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity.

This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the husband, and to establish that she had not been unfaithful, adulterous or disloyal.

If the appellant-wife is right, she shall be proved to be so.

We would, however, …record a caveat, giving the appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test.

In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the husband against her.

In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof.

Illustration (h) Section 114 of Evidence Act

• The Court may presume –
  • that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.

By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated u/s 112 of the Indian Evidence Act.

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Whether DNA test can be ordered in divorce proceedings?

No

Aparna Ajinkya Firodia v. Ajinkya Arun Firodia : February 20, 2023

Facts of the case

The present controversy emerges from an application filed by the husband before the Family Court, praying for a direction to subject Master “X”, the second child born to the wife, during the subsistence of her marriage with the respondent, to deoxyribonucleic acid test (“DNA test”), with a view to ascertain his paternity.

The said application was filed by the respondent-husband in a petition for divorce filed by him under Sections 13(1)(i) and (ia) of the Hindu Marriage Act.

The same was allowed by the Family Court, and confirmed by the High Court of Judicature at Bombay.

In the petition for divorce, the respondent, inter alia, alleged that the wife was in an adulterous relationship with one Kshitij Bafna, and the respondent discovered the same on 14th September, 2016 when he found that certain intimate messages had been exchanged between the appellant and Kshitij Bafna.

It must be proved by strong and cogent evidence that access between them was impossible on account of serious illness or impotency or that there was no chance of sexual relationship between the parties during the period when the child must have been begotten.

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.

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.

Even though the husband may be cohabiting there may be non-access between the husband and the wife.

One of the instances of non-access despite co-habitation is the impotency of the husband.

If the husband has had access, adultery on the wife’s part will not justify a finding of illegitimacy.

Section 112 was enacted at a time when modern scientific tests such as DNA tests, as well as Ribonucleic acid tests (‘RNA’), were not in contemplation of the legislature.

However, even the result of a genuine DNA test cannot escape from the conclusiveness of the presumption under Section 112 of the Evidence Act.

If a husband and wife were living together during the time of conception but the DNA test reveals that the child was not born to the husband, the conclusiveness in law would remain irrebuttable.

Allowing DNA tests to be conducted on a routine basis, in order to prove adultery, would amount to redefinition of the maxim, “Pater est quem nuptiae demonstrant”.

The case of the Respondent-husband is that if a DNA test is allowed and the same reveals that he is not the biological father of “X”, as a corollary, it would be proved that the Appellant-wife committed adultery.

We do not find favour with the approach suggested by the husband to prove adultery.

Master “X”, the son stated to be born to the wife from the wedlock, was born in the year 2013. DNA testing cannot be used as a short cut to establish infidelity that might have occurred over a decade ago or subsequently after the birth of Master “X”.

We are unable to accept that a DNA test would be the only way in which the truth of the matter can be established.

The husband has categorically claimed that he is in possession of call recordings/transcripts and the daily diary of the appellant, which may be summoned in accordance with law to prove the infidelity of the appellant.

Therefore, it seems to us that the respondent is in a position to attempt to make out a case based on such evidence, as to adultery/infidelity on the part of the appellant.

No plea has been raised by the respondent-husband herein as to non-access in order to dislodge the presumption u/s 112 of the Evidence Act. Therefore, no prima-facie case has been made out by the respondent which would justify a direction to conduct a DNA test of Master “X”.

On the appellant declining to subject Master “X” to a paternity test, no adverse inference can be drawn as regards the alleged adultery on the part of the appellant herein can be raised.

In our view, the allegation of adultery has to be proved by the respondent herein de hors the issue of paternity of Master “X”.

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