Justice Joytsna Rewal Dua of the Himachal Pradesh High Court has ruled that a couple having access to each other is conclusive evidence of a baby’s legitimacy under Section 112 of the Indian Evidence Act. This was noted while hearing a plea by a petitioner-husband seeking a DNA test of the child and parties, which had been dismissed by a District Judge in Shimla.
The Himachal Pradesh High Court noted that the petitioner (husband) and respondent (wife) had access to each other during the subsistence of their valid marriage. The bench observed that the presumption under Section 112 of the Indian Evidence Act gets attracted, and the baby’s legitimacy is conclusive proof as per the available record. The observations were made while hearing the application moved by the husband under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, challenging the order of the District Judge Shimla.
The bench further explained that conclusive proof of legitimacy is not available if a party to a marriage proves the absence of access. The presumption of legitimacy cannot be displaced unless absence of access is established. If the husband and wife have lived together and no impotency is proved, their child is conclusively presumed legitimate, even if the wife has been shown to be guilty of infidelity.
Justice Dua noted that Indian law favours legitimacy of a child and disapproves illegitimacy. The presumption of legitimacy cannot be easily overthrown, even if the mother is unfaithful. Non-access at the relevant time can only repel the conclusive presumption under Section 112 of the Indian Evidence Act, the bench clarified.
The Court referred to Section 112 of the Evidence Act, stating that if it is proved that the parties to a marriage had no access to each other, then the presumption of legitimacy under this Section cannot be invoked. The respondent-wife admitted in her testimony that her son was born to her and her husband, which indicates the husband’s acceptance of the child as his own, the Court noted.
The bench stated that the husband couldn’t rely on an allegation made by the respondent about the child not being his and needed to prove his allegations of cruelty and desertion with evidence. The bench further noted that the husband couldn’t infringe on the child’s right to privacy by seeking to determine paternity through a DNA test. The plea was dismissed, with the court emphasizing that the petitioner must provide evidence to support his claims rather than rely on allegations.
Source: https://www.livelaw.in/news-updates/himachal-pradesh-high-court-marriage-couple-access-child-legitimacy-dna-test-section-112-evidence-act-225699