Husband is the legal father of a child born out of wife's extramarital affair despite biological evidence: SC

In a prolonged debate over paternity and legitimacy, the top court on January 28 said the husband will be considered as the legal father if the woman has a valid marriage and the spouses have had access to each other.

Justices Surya Kant and Ujjal Bhuyan passed the order after the debate triggered by a case originating in Kerala.

The two judges examined the precedents in the United Kingdom, the United States and Malaysia.

Referring to Section 112 of the Indian Evidence Act, Justice Kant said husband is the legal husband of the child during the subsistence of the marriage.

The husband can challenge the legitimacy of the child only when he can prove that he did not have the access to his wife, the court ruled.

Non-access doesn't mean just inability but also the impossibility to have marital relations between the spouses, the court ruled.

"Non-access means the impossibility, not merely inability, of the spouses to have marital relations with each other. For a person to rebut presumption of legitimacy, they must first assert non-access which, in turn, must be substantiated by evidence," the court ruled as quoted by Financial Express.

The case pertains to a woman who admitted that her second child, a boy, was born in 2001 out of her extramarital affair.

Her husband's name was registered as the father of the boy in the Municipal Corporation of Cochin's birth register.

The two, who became parents for the first time in 1991 after they were blessed with a girl child, were divorced in 2006 three years after they began living separately due to marital differences.

After they were divorced, the woman approached the civic body with a request to register another man's name as the legal father of the boy. 

The woman admitted that the child was born out of her extramarital affair. The corporation stated it could only change if ordered by the court.

The Kerala courts had ordered a DNA test for the man who was involved in the extramarital affair.

After the man in the extramarital affair challenged the order in the Supreme Court, the order for the DNA test was rejected.

The top court said forcing an individual DNA test will lead his private life to public scrutiny harming his reputation and dignity.