Ivan Rathinam vs Milan Joseph on 28 January, 2025

[Cites 34, Cited by 0]



Supreme Court of India
Ivan Rathinam vs Milan Joseph on 28 January, 2025

Author: Surya Kant

Bench: Surya Kant

2025 INSC 115 REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION


CRIMINAL APPEAL NO. 413 OF 2025
[ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 4917 / 2018]




Ivan Rathinam ….Appellant(s)

versus

Milan Joseph ….Respondent(s)




JUDGEMENT

SURYA KANT, J.

Leave granted.

2. The instant appeal impugns the judgment dated 21.05.2018 passed by

a Single Judge of the Kerala High Court (Ernakulam) (High Court),

upholding the Family Court’s order dated 09.11.2015 reviving a

maintenance petition on the following grounds: (i) paternity and

legitimacy are independent concepts in law; (ii) the Civil Courts did not

have jurisdiction to entertain the original suit; and (iii) since only the

Signature Not Verified
Family Court can determine maintenance and legitimacy, the Family
Digitally signed by
SATISH KUMAR YADAV
Date: 2025.01.28
14:34:16 IST
Reason:
Court could proceed to determine paternity as incidental to the

maintenance proceedings.

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A. FACTS

A.1 First round of litigation

3. Since the instant appeal arises out of a long-drawn saga, during which

multiple rounds of litigation occurred inter-se the parties before various

fora, including this Court, it is necessary to narrate the factual events

before delving into the legal issues raised before us.


3.1 It is a matter of record that the Respondent’s mother married Mr. Raju

Kurian on 16.04.1989. In 1991, a daughter was born from this wedlock.

Subsequently, the Respondent was born on 11.06.2001. Immediately

after the Respondent’s birth, Mr. Raju Kurian’s name was entered as the

‘father’ of the Respondent in the Register of Birth maintained by the

Municipal Corporation of Cochin. Owing to differences between them, in

2003, the Respondent’s mother and Mr. Raju Kurian began residing

separately. Shortly thereafter, they moved a joint application for divorce,

which was granted by the Family Court in 2006. The Respondent’s

mother then approached the Municipal Corporation of Cochin,

requesting the authorities to enter the Appellant’s name in the Register

of Birth, as the father of the Respondent, in place of Mr. Raju Kurian’s

name. She allegedly reasoned that such a request was being made on the

basis that she had been involved in an extra-marital relationship with

the Appellant, due to which the Respondent was begotten. In response,

the Corporation authorities expressed that they would be able to grant

such a request only if directed to do so by a court of law.

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3.2 Consequently, the Respondent and his mother filed OS No. 425/2007

(Original Suit) before the First Additional Munsiff Court, Ernakulam

(Munsiff Court) seeking a decree declaring the Appellant to be the

Respondent’s father and a mandatory injunction directing the Appellant

to submit an application to include his name as the Respondent’s father

in the relevant registers. Subsequently, the Respondent and his mother

also moved an application seeking a direction to the Appellant to undergo

a DNA test to prove his paternity.

3.3 The Munsiff Court directed the Appellant, on 03.11.2007, to undergo the

paternity test. This direction was substantiated on the ground that,

considering no matrimonial relationship subsisted between the

Respondent’s mother and the Appellant, the presumption under Section

112 of the Indian Evidence Act, 1872 could not be drawn.


3.4 In the same year, the Respondent filed MC No. 224/2007 (Maintenance

Petition) under Section 125 of the Code of Criminal Procedure, 1973

(CrPC) before the Family Court, Alappuzha (Family Court) claiming

maintenance from the Appellant, on the ground that he was his biological

father. The Respondent filed the Maintenance Petition through his

mother as he was a minor at that time. It is pertinent to note that Mr.

Raju Kurian was not made a party to the Original Suit or the

Maintenance Petition.

3.5 In this backdrop, having been aggrieved by the Munsiff Court’s order

dated 03.11.2007, the Appellant filed WP (C) No. 37165/2007 before the

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 High Court. On 18.03.2008, a Single Judge of the High Court: (i)

disposed of the said Writ Petition; (ii) set aside the order dated

03.11.2007; and (iii) directed the Munsiff Court to consider the matter

in light of this Court’s judgment in Sharda v. Dharmpal,1 which laid

down that a court could order a paternity test only if the presumption

under Section 112 of the Indian Evidence Act, 1872 was displaced by

proving non-access. The High Court further noted that it was well within

the power of the court to direct a person to undergo a DNA test but that

power could be exercised only if the applicant made out a strong prima

facie case through sufficient material placed on record. In this regard, it

noted that such an in-depth analysis had, however, not been conducted

by the Munsiff Court.

3.6 The Appellant then filed Review Petition No. 411/2008 before the High

Court, contending that the correct law was laid down in Kamti Devi v.

Poshi Ram,2 wherein this Court held that the results of a genuine DNA

test would be insufficient to escape the conclusiveness of Section 112 of

the Indian Evidence Act, 1872, especially when the spouses had access

to each other. The Review Petition came to be decided by another Single

Judge of the High Court on 03.07.2008, who allowed the same and

disposed of the Writ Petition while clarifying that the court cannot permit

a DNA test unless, after adducing evidence, it was convinced that the




1 Sharda v. Dharmpal, (2003) 4 SCC 493.

2 Kamti Devi v. Poshi Ram, (2001) 5 SCC 311.

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 relevant stakeholders—the Respondent’s mother and Mr. Raju Kurian—

had no access to each other when the Respondent was begotten.


3.7 This prompted the Respondent and his mother to prefer SLP (C) No.

20951/2008 before this Court, challenging the order dated 03.07.2008.

This Court, on 14.09.2009, dismissed the same stating that no grounds

to interfere were made out.

3.8 Approximately a year later, on 15.10.2009, the Munsiff Court dismissed

the Original Suit with costs. The Munsiff Court held that there was no

need to refer the parties to a DNA test as a valid marriage subsisted

between the Respondent’s mother and Mr. Raju Kurian when the

Respondent was begotten. Further, it was emphasized that they had been

living as spouses under the same roof, from the date of their marriage

until 2003, well after the Respondent’s birth. The Munsiff Court, thus,

held that since the Respondent’s mother failed to prove non-access

between herself and Mr. Raju Kurian, the Respondent would be

presumed to be their legitimate son.

3.9 Thereafter on 05.02.2010, in view of the Munsiff Court’s order dated

15.10.2009, the Family Court closed the Maintenance Petition. However,

the court imposed a condition permitting the revival of the Maintenance

Petition if the Respondent or his mother filed an appeal or revision

against the Munsiff Court’s order, and the appeal or revision thereafter

favoured them.

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3.10 The Respondent and his mother then preferred AS No. 150/2010 (First

Appeal) before the III Additional Sub-Judge, Ernakulam (Sub-Judge),

against the Munsiff Court’s decision dated 15.10.2009. However, the

First Appeal was dismissed with costs vide the order dated 21.02.2011.

The Sub-Judge based his decision on three prongs: (i) Mr. Raju Kurian

would not have signed the consent letter, as the husband of the

Respondent’s mother, in the hospital when the Respondent was born, if

they had an estranged marital relationship; (ii) the Respondent’s mother

and Mr. Raju Kurian were living together as spouses long before, during,

and even after the Respondent’s birth; and (iii) the letters produced by

the Respondent’s mother, where she claimed the Appellant admitted his

paternity, were not proved to be written by the Appellant and thus, could

not be relied upon. In this manner, the Sub-Judge held that the evidence

adduced was insufficient to uproot the presumption of legitimacy under

Section 112 of the Indian Evidence Act, 1872.

3.11 The Respondent and his mother then filed RSA No. 973/2011 (Second

Appeal) before the High Court, assailing the Sub-Judge’s order. A Single

Judge of the High Court dismissed the Second Appeal vide the judgment

dated 28.10.2011. The Single Judge held that when the husband and

wife were living under one roof, non-access could not be pleaded as they

had the opportunity for a marital, sexual relationship. Further, the Single

Judge noted that the conclusiveness of Section 112 could not be watered

down merely because the mother was alleging paternity on someone

other than her husband, especially when the husband was not a party

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 to the proceedings. It is imperative to note that this order has not been

challenged in any further proceedings since and has attained finality.


A.2 Second round of litigation

3.12 It seems that the dispute then attained quietus for some years, only to

be resumed in 2015 when the Respondent filed an application before the

Family Court, seeking to revive the Maintenance Petition. The reasons

recorded in the said application were that the Respondent was facing

various health issues and had undergone several surgeries, which he

and his mother were unable to afford. Further, the Respondent claimed

that he had also not been receiving any maintenance from Mr. Raju

Kurian either for his medical or educational expenses.


3.13 On 09.11.2015, the Family Court revived the Maintenance Petition and

allowed Mr. Raju Kurian to be impleaded as a party respondent. In its

order, the Family Court observed that after the enactment and

effectuation of the Family Courts Act, 1984, the Family Court, alone, had

the jurisdiction to adjudicate a dispute regarding maintenance and the

legitimacy of a person. It further highlighted that these matters are

covered by explanation (e) and (f) of Section 7 of the Family Courts Act,

1984. As a result, the Family Court held the order passed by the Munsiff

Court to be devoid of jurisdiction. As a corollary thereto, it was elucidated

that the Family Court was not bound by its earlier order dated

05.02.2010 as the Munsiff Court lacked the jurisdiction to entertain the

Original Suit. Lastly, the Family Court observed that since the question

in a proceeding under Section 125 of the CrPC does not concern

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 legitimacy, the earlier orders of the Munsiff Court, the Sub-Judge, and

the High Court would not impede the Family Court from determining the

question of paternity.

3.14 Challenging this order of the Family Court, the Appellant filed Crl. (OP)

No. 420/2015 before the High Court. In this regard, the Appellant

contended that the Respondent was not entitled to institute a revival

memo owing to the Family Court’s order dated 05.02.2010, imposing a

condition on itself to reopen the case. Further, the Appellant contended

that since the Original Suit was filed for a declaration of paternity and

the order dated 28.10.2011 had attained finality, the issue in question

had already been decided by a court of competent jurisdiction and could

not be re-agitated.

3.15 The High Court, vide the impugned judgment dated 21.05.2018,

primarily determined that: (i) the legitimacy of birth was irrelevant when

considering the right of the child to receive maintenance from their

biological father; (ii) the presumption of legitimacy does not prevent an

enquiry into the true paternity of a child; (iii) since ‘paternity’ and

‘legitimacy’ operate in different spheres, a declaration on the legitimacy

of a child by a Civil Court would not impede an enquiry into ‘paternity’

by the Family Court, for the purpose of determining maintenance; and

(iv) the Civil Courts lacked jurisdiction to determine the legitimacy of the

Respondent, owing to the exclusive jurisdiction of the Family Court.

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3.16 Thus, aggrieved by this decision, the Appellant preferred the instant

appeal.

B. CONTENTIONS OF THE PARTIES

4. Mr. Romy Chacko, Learned Senior Advocate, appearing on behalf of the

Appellant, contended that the High Court erred in its decision and

adduced the following submissions:

(a) Since the Respondent failed to prove non-access between the

spouses when the Respondent was begotten, there is conclusive

proof that the Respondent is the legitimate child of Mr. Raju Kurian.

When legitimacy is established, the Respondent can claim

maintenance only from his ‘legitimate’ father, not a third-party,

whom he claims to be his biological father. Consequently, under

such circumstances, the Appellant could not be ordered to undergo

a DNA test.

(b) The prayer in the Original Suit was for a declaration that the

Appellant is the Respondent’s father, thus, making it a suit for

determining paternity. Since this issue was decided concurrently by

three courts, the question pertaining to paternity could not have

been reopened under the guise of ‘maintenance’ by the Family

Court. In any case, the condition permitting reopening had not been

fulfilled.

5. Per contra, Mr. Shyam Padman, Learned Senior Advocate, appearing on

behalf of the Respondent, put forth the following submissions:

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 (a) It is well-settled that ‘paternity’ and ‘legitimacy’ are distinct

concepts. While legitimacy can be determined through a legal

presumption, paternity is a matter of science. Thus, a civil suit

concerning the presumption of legitimacy under Section 112 would

not have any bearing on the determination of ‘paternity.’ Further, it

is in the best interests of the child that the Appellant undergoes a

DNA test, as the child has the right to know his real parentage and

accrue the rights emanating therefrom.


(b) Paternity, as a concept, is intrinsically connected with maintenance;

and maintenance can be claimed from the biological father even

when the child is illegitimate. Since maintenance can only be

decided by the Family Court, under explanation (f) of Section 7 of

the Family Courts Act, 1984, it is well within its jurisdiction to also

determine paternity when posed with the question of maintenance.

(c) The Family Court was entitled to revive the Maintenance Petition

because the condition for its revival was bad in law as legitimacy

and paternity are different concepts, independent of each other.

Thus, the revival of the Maintenance Petition concerning paternity,

could not be determined based on a finding of legitimacy in a civil

suit.

C. ISSUES

6. Having given our thoughtful consideration to the submissions at length,

the following issues arise for the consideration of this Court:

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 i. Whether the presumption of legitimacy, if not displaced, determines

paternity in law?

ii. Whether the Civil Court had the jurisdiction to entertain the

Original Suit; and accordingly, whether the Family Court was

entitled to reopen the Maintenance Petition?

iii. Whether the second round of litigation, initiated by the Respondent,

was barred by the principle of res judicata?

D. ANALYSIS

D.1 Issue No. 1: Displacing the presumption of legitimacy and

permitting a DNA test

7. The issue herein is regarding the effect of the conclusive presumption of

legitimacy, how it can be displaced, and under what circumstances a

court may order a DNA test. To this end, the Appellant argued that the

presumption of legitimacy is conclusive until it is rebutted by leading

evidence reflecting non-access between the spouses when the child was

begotten. Only when non-access is made out, the court may order a DNA

test. The Appellant further argued that the result of such a DNA test may

bastardize an innocent child and violate the right to privacy and dignity

of the persons involved. An order for a DNA test, therefore, must be

resorted to sparingly. In support of these contentions, the Appellant cited

decisions such as Aparna Ajinkya Firodia v. Ajinkya Arun Firodia,3




3 Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, (2024) 7 SCC 773.

11 | P a g e
 Ashok Kumar v. Raj Gupta,4 and Goutam Kundu v. State of W.B.,5

among others.

8. Per contra, the Respondent argued that even a positive finding by a Court

regarding the legitimacy of a child would not be sufficient to prove

paternity for the purpose of maintenance. Further, the Respondent

argued that Courts have ordered DNA tests because it is within the best

interests of the child to know their biological father. In support of their

contentions, the Respondent cited decisions such as Dipanwita Roy v.

Ronobroto Roy6 and Bhabani Prasad Jena v. Orissa State

Commission for Women.7

9. 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.

D.1.1 Displacing the notion of legitimacy

10. The Respondent has vehemently argued that ‘legitimacy’ and ‘paternity’

are different concepts—the former being rooted in law while the latter is

rooted in science. The High Court upheld this view and thereby,




4 Ashok Kumar v. Raj Gupta, (2022) 1 SCC 20.

5 Goutam Kundu v. State of W.B., 1993 (3) SCC 418.

6 Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365.
7 Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633.

12 | P a g e
 permitted the revival of the maintenance proceedings as an enquiry into

‘paternity,’ not ‘legitimacy.’

11. In this vein, we agree 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.

12. The question that, however, arises is whether the law contemplates and

accepts such a differentiation. To answer this, we deem it appropriate to

investigate the law governing the presumption of ‘legitimacy’ and

‘paternity’ globally, followed by its analysis in India.


D.1.1.1 Position in the UK

13. The presumption of legitimacy comes from the maxim, “pater est quem

nuptiae demonstrant” which means, “he is the father whom the marriage

indicates to be so.” Since time immemorial, English Courts upheld that

where a husband and wife cohabited and no evidence of impotency was

forthcoming, the child is conclusively presumed to be legitimate even

though the wife is known to have been guilty of infidelity.8 To date, the

presumption that a child born in wedlock is legitimate, has held the



8 Halsbury's Laws of England, Children, Volume 9, 2023; Halsbury's Laws of
England, Children, Volume 10, 2023.

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 floor.9 Earlier, the courts held that evidence from the spouses to disprove

legitimacy was inadmissible.10 Over time, this strict rule was relaxed and

the parties were permitted to rebut this presumption by claiming non-

access and leading evidence accordingly.11

14. Advances in science and social transformation led to the passing of the

Family Law Reform Act, 1969.12 It was later replaced by the Family Law

Reform Act, 1987.13 Initially, the presumption of legitimacy could only be

rebutted by proof beyond reasonable doubt.14 However, by virtue of

section 26 of the 1969 Act, the presumption could be rebutted on a

simple balance of probabilities.15 This legislation also empowered the

courts to conduct paternity tests to determine the biological father of the

child,16 even without the guardian’s consent.17

15. Any person could apply to the High Court for a declaration as to whether

that person is the parent of another person.18 The court may refuse to

hear the application if it considers that the determination of the

application would not be in the best interests of the child. Despite this,

the Family Court has continued to uphold the rule that ‘access’ must be




9 In re H. and Others (Minors) (Sexual Abuse: Standard of Proof), [1996] 2 WLR 8.
10 Russell v. Russell, (1924) AC 687.

11 In re Guardianship of Infants Acts, 1886 and 1925, AND In re S. B. An Infant., [1949] Ch.

108.
12 United Kingdom Family Law Reform Act, 1969.

13 United Kingdom Family Law Reform Act, 1987.

14 Preston-Jones v. Preston-Jones [1951] A.C. 391.
15 In re H. and Others, supra note 9.

16 1987 Act, supra note 13, Section 23.

17 Re Le, [1968] 1 All ER 20.

18 1987 Act, supra note 13, Section 55A.

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 proved with cogent evidence, and that it is insufficient to merely show

that opportunities for sexual intercourse existed.19

16. Thus, in England, the presumption of legitimacy exists to date. As

illustrated, it can be rebutted by claiming non-access and leading

evidence to prove so by a simple balance of probabilities. Additionally,

the claims of infidelity or adultery, in and of itself, would be insufficient

to rebut the presumption of legitimacy.

D.1.1.2 Position in the United States of America

17. In the United States, State laws presume that a child born in wedlock is

the natural, legitimate child of the mother's husband. However, the rules

concerning the presumption of legitimacy and the evidence necessary to

rebut it vary from State to State. As a result, the US Supreme Court has

had few opportunities to discuss the ‘marital presumption.’ For instance,

the US Supreme Court dealt with a case where the respondent claimed

to be the biological father of the children, though they were conceived

during the subsistence of a valid marriage between the appellants.

Despite the Californian Evidence Code permitting the results of DNA

tests to be admitted into evidence to determine paternity, the US

Supreme Court noted that the law retained a strong bias against ruling

the children of married women illegitimate.20

18. In response to the need for new legislation eliminating the legal

differentiation between ‘legitimate’ and ‘illegitimate’ children, the


19 MS v. RS and Others, [2021] Fam. 1.

20 Michael H. and Victoria D. v. Gerald D., 1989 SCC OnLine US SC 116.

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 Uniform Parentage Act, 197321 was promulgated. This Act was later

amended in 2002 and 2017. The aforementioned Act incorporates the

presumption of paternity in circumstances such as:22 (i) where there is a

marriage between the presumed father and the mother at the time of the

child's birth; (ii) where the marriage was terminated no more than 300

days prior to the child's birth; and (iii) where the presumed father and

the mother got married after the child's birth. Only one father, however,

may trigger the marital presumption.

19. All States continue to recognize at least a rebuttable presumption that a

child born within marriage is the child of the husband,23 but continue to

limit the circumstances in which it may be rebutted.24 Several States

grant the biological father a right to rebut the presumption and establish

a relationship with the child.25 Courts in other States apply the marital

presumption based on a ‘best interest’ analysis, i.e. they will not allow

the presumption to be rebutted unless it is in the child’s interests. These

rulings often result in decisions upholding the marital presumption.26

20. The courts in USA and England thus, seem to maintain a strong bias

towards the presumption of legitimacy. Nonetheless, both jurisdictions

have enacted specific provisions governing the procedure to order DNA

tests when the legitimacy of a child comes under challenge. However, this


21 Uniform Parentage Act, 1973.

22 Id., Section 4.

23 Leslie J. Harris, June Carbone, and Lee R. Teitelbaum, Family Law, 4th Edition, 2010.
24 Vargo v. Schwartz, 940A2d 459, 463 (Pa Super 2007).
25 Callender v. Skiles, 591 NW2d 182, 190 (Iowa 1999); In the Interest of JWT, 872 SW2d 189

(Tex. 1994). on
26 Hardy v. Hardy, 2011 Ark. 82; Kamp v. Dep’t of Human Services, 410 Md. 645, 980 A.2d

448 (2009); and Williamson v. Williamson, 690 SE2d 257 (Ga App 2010).

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 presumption is moulded as the foundation for these provisions and

cannot be displaced by mere allegations or suspicion. The court can

order a DNA test only after cogent and reliable evidence is led to prove

illegitimacy and if the test is in the ‘best interests’ of the child.


D.1.1.3 Position in Malaysia

21. We also find it fruitful to look into the position regarding the presumption

of legitimacy in Malaysia as they have extensively borrowed the language

of Section 112 of the Indian Evidence Act, 1872. To compare the progress

between the two jurisdictions, it would prove beneficial to look into

Malaysia’s Evidence Act, 1950.

22. In Malaysia, the court presumes the child to be legitimate if: (i) a valid

marriage existed between the presumed parents; and (ii) the child was

born during the subsistence of a valid marriage or within 280 days of its

dissolution. This presumption can be rebutted by proving non-access

when the child could have been conceived.

23. The courts generally refuse to order DNA testing when the child is born

during a valid marriage between the parties, and especially when the

applicant fails to prove a lack of sexual access between them.27 However,

if the parties undergo a DNA test voluntarily, the results of such a test

can be admitted into evidence to determine paternity.28




27 Ng Chian Perng v. Ng Ho Peng, [1998] 2 CLJ Supp 227.
28 Alesiah Jumil & Chua Kin Han v. Julas Joenol, [2013] 1 LNS 1213.

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24. Here, we notice a consonance between the laws in all three jurisdictions.

While the courts have the authority to direct the parties to undergo a

DNA test if a case for non-access is made out, the courts may also utilize

the results of a voluntarily-conducted DNA test to displace the

presumption. However, the standard of proof required in Malaysia seems

to be higher than a mere balance of probabilities.


D.1.1.4 Position in India

25. The above analysis makes it clear that courts around the globe have

recognized the theoretical difference in ‘paternity’ and ‘legitimacy’ to the

extent that in the Venn diagram of paternity and legitimacy, legitimacy

is not an independent circle, but is entombed within paternity. 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 instant appeal.

26. 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.

27. Before delving into the analysis, it is pertinent to elucidate Section 112

of the Indian Evidence Act, 1872:

“112. Birth during marriage, conclusive proof of legitimacy.
The fact that any person was born during the continuance of
a valid marriage between his mother and any man, or within
two hundred and eighty 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 the
parties to the marriage had no access to each other at any time
when he could have been begotten.”


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28. The language of the provision makes it abundantly clear 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. This section

provides that conclusive proof of legitimacy is equivalent to paternity.29

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.’

29. 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.30 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.31 Non-access means the impossibility, not merely

inability, of the spouses to have marital relations with each other. 32 For

a person to rebut the presumption of legitimacy, they must first assert

non-access which, in turn, must be substantiated by evidence.




29 Aparna Ajinkya Firodia, supra note 3.

30 Mir Muzafaruddin Khan v. Syed Arifuddin Khan, (1971) 3 SCC 810, para 6; Chilukuri
Venkateswarlu v. Chilukuri Venkatanarayana, (1953) 2 SCC 627, para 4.
31 Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449; Kamti Devi, supra note 2.
32 Aparna Ajinkya Firodia, supra note 3; Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454.

19 | P a g e

30. It is only when such an assertion is made, that the court can consider

the question of ordering a DNA test to establish paternity. In Goutam

Kundu v. State of W.B. (supra), this Court laid down the following

parameters to decide whether a court can order a DNA test for the

purposes of Section 112:

“(1) that courts in India cannot order blood test as a matter of
course;
(2) wherever applications are made for such prayers in order
to have roving inquiry, the prayer for blood test cannot be
entertained.
(3) There must be a strong prima facie case in that the husband
must establish non-access in order to dispel the presumption
arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the
consequence of ordering the blood test; whether it will have
the effect of branding a child as a bastard and the mother as
an unchaste woman.
(5) No one can be compelled to give sample of blood for
analysis.”

31. These parameters have been subsequently followed by this Court in

Sharda v. Dharmpal (supra) and Bhabani Prasad Jena v. Orissa

State Commission for Women (supra). In these cases, it was held that

DNA tests may be ordered, only if a strong prima facie case of non-access

is made out, with sufficient material placed before the court to arrive at

a decision.

32. In the case at hand, it is an admitted fact that when the Respondent was

begotten in 2001, his mother and Mr. Raju Kurian were married. In fact,

they had been married since 1989 and neither had ever questioned the

validity of the marriage. They were, admittedly, living under the same

roof from 1989 till 2003, when they decided to separate. It is, but




20 | P a g e
 obvious, that the Respondent’s mother and Mr. Raju Kurian had access

to each other throughout their marriage. This conclusion has been

arrived at through concurrent findings of all the courts involved, at

multiple stages of litigation. Even if it is assumed that the Respondent’s

mother had relations with the Appellant during her marriage and

especially when the Respondent was begotten, such a fact per se, would

not be sufficient to displace the presumption of legitimacy. The only thing

that such an allegation sheds light on is the fact that there seems to have

been simultaneous access with the Respondent’s mother, by the

Appellant and Mr. Raju Kurian. What, however, needs to be clarified is

that an ‘additional’ access or ‘multiple’ access does not automatically

negate the access between the spouses and prove non-access thereof.

Consequently, there is a statutory mandate that the Respondent must

be presumed to be the son of Mr. Raju Kurian.

33. 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.


D.1.2 Balancing of interests and the ‘eminent need’ for a DNA test

34. The Respondent argued that it was in his best interests that the

Appellant undergo a DNA test, as he has the right to know his true

parentage and accrue rights emanating therefrom, such as maintenance.

The High Court upheld this view and noted that though it is not in the



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 interest of society to brand a child as ‘illegitimate,’ the interest of the

child to know his biological father and claim maintenance from him is

overwhelming in comparison.

35. In the peculiar circumstances of this case, this Court must undertake an

exercise to ‘balance the interests’ of the parties involved and decide

whether there is an ‘eminent need’ for a DNA test.33 This pertains not

simply to the interests of the child, i.e. the Respondent, but also to the

interests of the Appellant.

36. 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. On the

other hand, courts must assess the child’s legitimate interest in knowing

his biological father and whether there is an eminent need for a DNA test.


D.1.2.1 Right to privacy and right to dignity

37. Having recognized the diverging pathways in the present analysis, it is

pertinent to first address the aspect of the right to privacy. At the outset,

a cursory reference to the decision in K.S. Puttaswamy (Privacy-9J.) v.

Union of India,34 reveals that privacy is concomitant to the right of the

individual to exercise control over his or her personality. Privacy

includes, at its core, the preservation of personal intimacies, the sanctity

of family life, marriage, procreation, the home, and sexual orientation.

Privacy also connotes a right to be left alone, as a corollary to the


33 Sharda, supra note 1.

34 K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

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 safeguarding of individual autonomy and the ability of an individual to

control vital aspects of his life. Elaborating further, this Court held that:

“325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life and
personal liberty under Article 21, privacy is not an absolute
right. A law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on
fundamental rights. In the context of Article 21 an invasion of
privacy must be justified on the basis of a law which stipulates
a procedure which is fair, just and reasonable. The law must
also be valid with reference to the encroachment on life and
personal liberty under Article 21. An invasion of life or
personal liberty must meet the threefold requirement of (i)
legality, which postulates the existence of law; (ii) need,
defined in terms of a legitimate State aim; and (iii)
proportionality which ensures a rational nexus between the
objects and the means adopted to achieve them.”

38. In this context, while permitting an enquiry into a person’s paternity vide

a DNA test, we must be mindful of the collateral infringement of privacy.

For this, the court must satisfy itself that the threshold for the above-

mentioned three conditions is satisfied. If even one of these conditions

fails, it is considered an unwarranted invasion of privacy and

consequently, of life and personal liberty as embodied in Article 21 of the

Constitution.

39. Similarly, when dealing with the right to dignity, this Court, in X2 v.

State (NCT of Delhi),35 held that the right to dignity encapsulates the

right of every individual to be treated as a self-governing entity having

intrinsic value. It means that every human being possesses dignity

merely by being a human, and can make self-defining and self-

determining choices. Further, this Court held that the right to dignity is


35 X2 v. State (NCT of Delhi), (2023) 9 SCC 433.

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 intertwined with the right to privacy. This means that a person can

exercise his right to privacy in order to protect his right to dignity and

vice-versa. Together, these rights protect an individual’s ability to make

the most intimate decisions regarding his life, including sexual activity, 36

whether inside or outside the confines of marriage.

40. 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.

41. Usually in cases concerning legitimacy, it is the child’s dignity and

privacy that have to be protected, as they primarily come under the line

of fire. Though in this instance, the child is a major and is voluntarily

submitting himself to this test, he is not the only stakeholder bearing

personal interest in the results, whatever they may be. The effects of

social stigma surrounding an illegitimate child make their way into the

parents’ lives as there may be undue scrutiny owing to the alleged

infidelity. It is in this backdrop that the Appellant’s right to privacy and

dignity have to be considered.

36 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

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42. Moreover, the Respondent is already declared to be the legitimate son of

Mr. Raju Kurian. The fishing enquiry, which he wants through the

judicial process is seemingly, not meant to bring ‘certainty’ to an

uncertain event. Rather, it is predominantly targeted to harm the

Appellant’s reputation. The Respondent knows well who is his ‘father’ as

per the law.

43. That apart, the courts must also remain abreast with the effects such a

probe would have on other relevant stakeholders, especially women.

Casting aspersions on a married woman’s fidelity would ruin her

reputation, status, and dignity; such that she would be castigated in

society. Though in this case, the Respondent’s mother is actively

associated in propagating this vexatious litigation, one can only imagine

the repercussions in other cases where a child, in utter disregard to the

sentiments and self-respect of their mother, initiates proceedings seeking

a declaration of paternity? The conferment of