CHENNAI: A child born during the continuance of a valid marriage between his/her parents is a legitimate child, irrespective of the question whether he/she was born six, seven or eight months from the date of their marriage, the Madras High Court has ruled.
Justice M Venugopal gave the ruling, while dismissing a revision petition from one Prakash, who sought to quash an order dated October 8, 2014 of the Judicial Magistrate in Cheyyar refusing to order DNA test on his wife to decide the paternity. He claimed that the child, born within six months from the date of marriage, was not his. He also claimed that he never had any sexual relationship with his wife, before and after the marriage.
Prakash was married to Mallika (name changed) at a temple in Cheyyar on May 16, 2008, following the decision taken by the family members of both sides and police officers at the Anakkavoor police station. The marriage was also registered at the Cheyyar Sub-Registrar’s office in the same year. Out of the wedlock, a female child was born to them after six months, on November 22. He had moved the lower court to subject his wife to a DNA test to decide the paternity of the child. Observing that the marriage between Prakash and Mallika was admitted by both the sides and when the marriage relationship subsisted during the said period of relationship, if a child was born out of the wedlock, then one had to come to the conclusion that the child was born only during the subsistence of the marriage relationship as per Sec. 112 of the Indian Evidence Act, the lower court rejected his plea in October 2014. Hence, the present revision petition.
Upholding the lower court’s order, Justice Venugopal observed that it could not be forgotten that a child born during the wedlock of the parties is ‘presumed’ to be a legitimate one and the burden lies on the shoulders of the husband to prove otherwise. Unless the husband is able to establish non-access satisfactorily and conclusively, the presumption under Sec. 112 of the Indian Evidence Act shall prevail. The word ‘access’ means no more than an opportunity of intercourse, the judge said.
The judge also said that it could not be gainsaid that Sec. 112 of the IE Act referred to the ‘point of time of birth’ as a deciding factor and not to the time of conception. Whenever a child is born in a lawful wedlock, there is a question of presumption of legitimacy unless it is proved by a very reliable evidence such as divorce, long and continued separation or illness. The wife had claimed that her husband had sexual intercourse with her even before their marriage, the judge said and dismissed the petition.