Husband Remains Legal Father of a Child Born From Wife’s Adultery
- According to Indian law, a man is recognized as the father of a child born during the course of a marriage. Section 112 of the Indian Evidence Act, 1872, stipulates that a child born within a valid marriage or within 280 days following the dissolution of the marriage is deemed the legitimate child of the husband. This presumption is definitive unless it can be demonstrated that the couple had no opportunity for cohabitation during the time of conception.
- If a child is born while a marriage is still valid, the husband retains his status as the legal father, regardless of whether he is the biological parent.
- In a case from Kerala, the wife acknowledged her extramarital affair, admitting that her child was conceived as a result of her relationship with another man.
- Following the divorce, the wife encountered financial difficulties and subsequently filed a petition for maintenance from the outside party, requesting a DNA test to substantiate her claim. The Hon’ble Kerala High Court ordered DNA test of the child, wife and the outside party.
- The outside party appealed to the Hon’ble Supreme Court, contesting the DNA test on the grounds that it would violate the provisions of Section 112 of the Indian Evidence Act, 1872, which asserts that a child born during a valid marriage or within 280 days after its termination is the legitimate offspring of the husband.
- The Hon’ble Supreme Court ruled that compelling an individual to undergo a DNA test would expose their private life to public examination, potentially damaging their reputation.
- Consequently, the outside party has the right to take measures to safeguard their dignity and privacy, including the refusal to participate in the DNA test.
- The Hon’ble Supreme Court upheld the appeal of the outside party and annulled the order from the Hon’ble Kerala High Court that mandated the DNA test.
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