Married Couple's Access To Each Other Conclusively Determines Child's Legitimacy U/S 112 Evidence Act: Himachal Pradesh High Court

The observations to this effect was made by Justice Joytsna Rewal Dua while hearing a plea challenging the order of District Judge Shimla in terms of which it had dismissed the application of the petitioner-husband seeking DNA test of the child and the parties.

The application had been moved in proceedings pending between the petitioner (husband) and the respondent (wife) under Section 13(1)(ia) and (ib) of the Hindu Marriage Act.

After perusing the available record the bench noted that the couple had access to each other and the husband had not even denied access to his wife in his pleadings to the divorce petition.

"He has specifically admitted having access to his wife while appearing as PW-1 and further that he used to stay with his wife during weekends. Thus, the presumption under Section 112 of the Indian Evidence Act gets attracted. The baby was born to the couple having access to each other and during subsistence of valid marriage between them. It is conclusive proof of baby’s legitimacy", the bench observed.

Deliberating further on the matter the bench explained that if a party to a marriage establishes that there was no access to the party to the marriage, then the shield of conclusive proof becomes unavailable.

“Unless the absence of access is established, the presumption of legitimacy cannot be displaced. Where the husband and wife have co-habited together and no impotency is proved, the child born from their wedlock is conclusively presumed to be legitimate, even if the wife is shown to have been, at the same time, guilty of infidelity”, the bench maintained.

Observing that the Indian law leans towards legitimacy and frowns upon bastardy, Justice Dua observed that the presumption in law of legitimacy of a child cannot be lightly repelled and the fact that a woman is living in adultery would not by itself be sufficient to repel the conclusive presumption in favour of the legitimacy of a child. The operation of conclusive presumption under Section 112 can be avoided by proving non-access at the relevant time, the bench underscored.

The Court noted that as per Section 112 of the Evidence Act, once the party questioning the legitimacy of the birth of a child shows that the parties to the marriage had no access to each other, then, the benefit of this Section is not available to the party invoking it.

“While appearing in the witness box as RW-1, the respondent-wife has admitted the suggestion given to her that her son was born to her and her husband (petitioner). This question put to the wife indicates that husband admits the child to be his progeny”, the Court further noted.

Commenting on the fact that the husband had sought decree of divorce on grounds of cruelty and desertion and had levelled the allegation about the child not being his by merely projecting that the respondent (wife) had told him so, the bench said It was for the petitioner to prove his case by leading evidence and that he could not have hunted for evidence by moving application under Section 45 of the Indian Evidence Act, seeking to determine paternity of the child, thereby infringing child’s right of privacy.

"It is for the petitioner to prove his allegations of cruelty and desertion against the respondent (wife) on the strength of evidence adduced by him. He cannot be allowed to fill up the lacuna, if any, in his evidence by seeking to conduct the DNA test of the child and the parties", the bench concluded while dismissing the plea.

Case Title: Anil Kapoor Vs Dipika Chauhan

Citation: 2023 LiveLaw (HP) 23

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