New Delhi: Advising a cautious approach in cases of paternity, the Supreme Court Tuesday underscored that DNA tests in such matters should be ordered only if there is an “eminent need” for it.
Drawing curtains on a “convoluted case” spanning over two decades, a bench of Justices Suryakant and Ujwal Bhuyan said that DNA test cannot be asked for a matter of legal right, as it could lead to a “collateral infringement of privacy” of the person against whom it is sought.
Moreover, the bench highlighted that the law presumes that the husband is the father of a child born during marriage, and the same is not negated even if the wife had relations with another man, unless it is proven that the spouses did not have “access” to each other (physical relations) during the period of wedlock.
Since a DNA test can affect rights to privacy and dignity, causing disproportionate harm to stakeholders, courts must exercise “balance of interests”, while deciding if such an examination is necessary, the top court said. Acknowledging that there is an interplay of two competing rights—privacy and legitimate interest—in paternity cases, the court said that a DNA test should be ordered only when the other available modes to establish the paternity fail to prove it.
A DNA test is akin to permitting a roving enquiry into a person’s private life and can irreversibly affect a person’s social and professional life, the court added.
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The case
The apex court’s judgment came on a vexatious litigation that began 18 years ago by a boy and his mother against a man, who they claimed was the child’s biological father. The woman in the case had claimed that she was having an extramarital affair with the man, and that the son was born out of the illegitimate relationship the two had while she was still married.
Court’s judgment was delivered on the man’s appeal against a 2018 order of the Kerala High Court that upheld a family court’s decision, declaring that it had the jurisdiction to adjudicate the dispute regarding the maintenance petition filed by the woman and her son.
Both the family court and high court had brushed aside the man’s contention that they could not have looked into the maintenance plea since the woman and son had lost an earlier round of litigation in which their plea for his DNA test to determine the child’s parentage was rejected.
According to the high court’s finding, the family court had the jurisdiction to entertain the maintenance petition, despite previous orders. It said that the maintenance plea was not to determine the legitimacy of the child, but to receive maintenance, adding that legitimacy and paternity are two different concepts. Even though the law presumed the woman’s husband to be the boy’s biological father, a DNA test can be ordered to know the true paternity of the child, it ruled.
The high court added that previous decisions favouring the man would not impede the family court from ordering an enquiry into “paternity” for the purpose of determining maintenance.
Aggrieved, the man appealed before the Supreme Court, where he recalled the different stages of litigation. His lawyer argued that the woman, who got married in 1989, had first given birth to a daughter in 1991, and then to a boy in 2001. She remained with her husband till 2003, before the two applied for divorce through mutual consent that was granted in 2006.
It was then that the woman and her son claimed that the man was the boy’s biological father and that his name should be entered in the government records as well. She moved an application before the municipal authority in Cochin to change the name of her son’s father on the ground that the child was born out of the extramarital affair with the man.
When her request was turned down, the woman approached a munsiff court in Ernakulum to seek a declaration to include the man’s name as the boy’s father. She also filed an application before the court to seek a direction to the man to undergo a DNA test to prove his paternity.
Though the munsiff court ordered the DNA test in 2007, the high court set it aside in 2008, when the man appealed against it. The high court had then evaluated the case on the basis of Section 112 of the Indian Evidence Act, 1872, and said that it cannot permit the DNA test, unless it is proven that the woman and her husband had no access to each other, when the boy was born.
Section 112 of the Indian Evidence Act presumes legitimacy of a child, who is born during a valid marriage or within 280 days after marriage ends. It says the husband is presumed to be the child’s father, unless there is conclusive proof that the couple had no access to each other, when the child could have been conceived.
Meanwhile, the boy filed a separate petition for maintenance before a family court, claiming that since he was his biological son, he was entitled to get monthly expenses from him under Section 125 of the Code of Criminal Procedure (CrPC).
However, following the high court’s 2008 order, the munsiff court in October 2009 dismissed the woman’s suit demanding the man be declared as her son’s father.
Later, in October 2010, in view of the munsiff court’s order, the family court too closed the maintenance petition. An appeal against the munsiff court’s final order of 2009 was dismissed by the Kerala High Court in October 2011.
Four years later, the litigation was revived, after the boy approached the family court again for maintenance. He claimed that he was facing various health issues and had undergone several surgeries, which his mother was unable to afford. It was his case that he was not receiving any maintenance from the mother’s former husband either for his medical or educational expenses.
In November 2015, the family court allowed the revival plea, which was upheld by the Kerala High Court in May 2018.
Before the Supreme Court, the man argued that the woman had failed to prove non-access between her husband and herself, when the son was born. Therefore, there is conclusive evidence that the son is the legitimate child of the ex-husband. Therefore, he argued that he cannot be compelled to undergo a DNA test.
His contention also revolved around the reopening of an issue that was judicially already determined. Three concurrent findings, he said, were in his favour and the issue of paternity could not have been reopened under the guise of “maintenance”.
The woman and her son’s lawyer, however, defended the Kerala High Court’s 2018 judgment, and said that paternity and legitimacy were distinct concepts. While legitimacy can be determined through legal presumption, paternity is a matter of science. It was in the interest of the child to know his real parentage so that his rights that emanate from the relationship remain protected, it was argued.
Paternity, they said, was intrinsically linked to maintenance that can be claimed by a biological child, even if he or she is illegitimate.
‘Paternity & legitimacy are intertwined’
After analysing the law in light of the unique factual matrix of the case before it, the top court held that paternity and legitimacy are inherently intertwined and are not independent concepts, as argued by the woman and her son. Hence, it set aside the high court’s view that paternity can be determined independently for the purpose of granting maintenance to the boy.
Upon the perusal of Section 112 of the Indian Evidence Act, the bench clarified that under the law, if it is proven that a married couple had access to each other at the time of the child’s conception, the child is deemed legitimate, thereby establishing the couple’s paternity. 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 a 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’,” the bench explained.
What non-access means
A person who rebuts the presumption of legitimacy should substantiate by evidence that it was impossible for the spouses to have marital relations with each other. Merely being on non-speaking terms, engaging in extra-marital affairs, or residing in different houses in the same village, does not preclude the possibility of the spouses having an opportunity to engage in marital relations, the bench clarified.
Applying the legal principles to the case before it, the bench concluded that the woman was married to her husband, when she gave birth to the boy. Her marriage till 2003 was never questioned and since the two were living together, they had access to each other until they parted.
Even if the woman’s statement of having an extramarital affair is accepted, the court said, the same is not sufficient to rebut the presumption that her son’s legitimate father is her husband.
Instead, it may only lead to the conclusion that she had relations with two persons simultaneously. “Additional” or “multiple” access cannot negate the access between her and her husband, the court held.
‘DNA test must be used sparingly’
The bench acknowledged that with the advent of scientific testing, it has become easier to prove that a child is not a particular person’s offspring. However, use of DNA tests must be done sparingly in view of private rights being absolute now.
Right to privacy is concomitant to the right of an individual to exercise control over his or her personality that includes preservation of his personal intimacies, sanctity of family life, marriage and sexual orientation.
A DNA test can be an unwarranted invasion of one’s privacy, and must be ordered if the court is satisfied that it is valid, legitimate and has a rational nexus with the objective it intends to meet.
The court particularly cautioned against use of DNA tests in cases concerning legitimacy of a child as the effects of social stigma surrounding an illegitimate child can make its way into the lives of the parents, who would be under undue scrutiny owing to alleged infidelity.
In this backdrop, the court did not favour a DNA test of the man who was before it, and said that a fishing enquiry would not bring certainty to an uncertain event. Moreover, it said that the woman’s husband was already declared to be the boy’s father, according to the current legal framework.
(Edited by Mannat Chugh)
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