Summary
The Supreme Court set aside the revival of a maintenance petition in which the respondent sought to prove that the appellant, not his mother's husband, was his biological father. It held that under Section 112 of the Evidence Act legitimacy determines paternity unless non-access is proved; that a DNA test could not be ordered where the spouses admittedly had access and the balance of privacy and dignity interests weighed against it; that the civil court had jurisdiction over the earlier declaratory suit; and that the revived proceedings were barred by res judicata.
Issues
- Whether the presumption of legitimacy under Section 112 of the Evidence Act, if not displaced, determines paternity in law, and when a DNA test may be ordered.
- Whether the civil court had jurisdiction to entertain the suit for declaration of paternity, and whether the Family Court could revive the maintenance petition contrary to its own condition.
- Whether the second round of litigation was barred by res judicata.
Provisions considered
- Section 112, Indian Evidence Act, 1872Quoted; birth during a valid marriage is conclusive proof of legitimacy, which is treated as paternity, unless non-access, meaning impossibility rather than inability of marital relations, is shown. Since the spouses lived together when the respondent was conceived, he was presumed to be the husband's son. (¶¶ 27, 28, 29, 32, 70)
- Article 21, Constitution of IndiaA compelled DNA test intrudes on the rights to privacy and dignity and must satisfy legality, legitimate aim and proportionality; on balance these rights of the appellant and the respondent's mother outweighed the respondent's claim. (¶¶ 37, 38, 39, 40, 45)
- Sections 7 and 8, Family Courts Act, 1984Quoted; the Family Court's exclusive jurisdiction over declarations of legitimacy relates to matrimonial causes, and does not cover a claim not founded on the marital relationship, such as one alleging an extra-marital relationship with a third party; the civil court therefore had jurisdiction over the suit. (¶¶ 54, 56, 57, 58)
- Section 151, Code of Civil Procedure, 1908Read with Section 7 of the Family Courts Act, it empowered the Family Court to keep the maintenance petition in abeyance subject to a self-imposed condition for revival depending on the outcome of the civil proceedings. (¶¶ 59, 61, 62, 63)
- Section 11, Code of Civil Procedure, 1908The High Court's unchallenged 2011 decision conclusively settled legitimacy between the parties; the maintenance claim, being interdependent with legitimacy, could not later be revived to relitigate it. (¶¶ 64, 65, 66, 67, 68)
- Section 125, Code of Criminal Procedure, 1973The respondent's maintenance petition against the appellant as his alleged biological father was held wrongly revived and was quashed. (¶¶ 3.4, 63, 70)
Held
- Legitimacy and paternity may differ scientifically, but under Section 112 of the Evidence Act legitimacy determines paternity until the presumption is rebutted by proof of non-access; the High Court erred in treating paternity as an independent question that could be decided regardless of concurrent findings on legitimacy. (¶¶ 11, 28, 33, 70)
- 'Access' means only an opportunity for marital relations, and non-access means its impossibility. Where spouses lived under one roof when the child was conceived, an allegation that the mother also had relations with another man shows at most additional access and does not prove non-access. (¶¶ 29, 32)
- A DNA test cannot be ordered as a matter of course or for a roving inquiry; it requires a strong prima facie case of non-access, then insufficiency of the existing evidence, and finally a balance of interests in favour of the test ('eminent need'), weighing the privacy and dignity of the putative father and of the mother against the child's interest in knowing his parentage. (¶¶ 30, 31, 35, 36, 44, 46, 47)
- No DNA test was warranted here: the evidence amply supported the presumption, the letters relied on were not proved, the birth register named the husband, and compelling the test on mere allegations of adultery would disproportionately harm the appellant's privacy and dignity. Nandlal Wasudeo Badwaik and Dipanwita Roy were distinguished. (¶¶ 45, 48, 49, 50, 51, 52)
- The Family Court's exclusive jurisdiction over declarations of legitimacy under Section 7 of the Family Courts Act does not extend to claims not founded on the marital relationship; a suit alleging that a third party is the father was rightly entertained by the civil courts. (¶¶ 56, 57, 58)
- The Family Court validly kept the maintenance petition in abeyance under Section 151 CPC on condition that it could be revived only if the civil proceedings went in the respondent's favour; that condition being unfulfilled, the 2015 revival was wrong. (¶¶ 59, 61, 62, 63)
- Once the question of legitimacy was finally decided between the parties by the unchallenged 2011 High Court judgment, it could not be reopened in maintenance proceedings on the theory that maintenance can be decided separately from legitimacy; the revival offended res judicata, which courts must apply even if not pleaded. (¶¶ 64, 65, 66, 67, 68)
Result
Appeal allowed; the High Court judgment of 21.05.2018 and the Family Court order of 09.11.2015 set aside; MC No. 224/2007 quashed; any claim by the respondent based on paternity against the appellant negated, and the respondent presumed to be the legitimate son of his mother's husband.