INTRODUCTION
“No matter who impregnates your wife, the law presumes the husband must bear the responsibility of fatherhood. “This long-standing legal fiction lies at the heart of India’s conclusive presumption of legitimacy. The courts are dealing with cases where the husband denies being the biological father to evade maintenance, having the common contention of no access to their partner at the time when the child could have been conceived. Here comes the common law principle of Legitimacy of Children as dealt in section 116 of Bharatiya Sakshya Adhiniyam 2023 (BSA) based on the maxim “he is the father whom the marriage indicates”.
It places severe restrictions on rebutting the presumption to avoid declaring a child illegitimate. It also protects the child’s rights to inheritance and succession, while preserving the dignity of women and safeguarding the institution of the family to ensure the child’s secure future.[1] However, this provision poses a significant challenge in cases where the person is not the biological father, and even after this, he has to bear the responsibility of paternity due to legal presumption.[2]
LEGAL PROVISIONS AND JUDICIAL INTERPRETATIONS
As per section 116 of BSA, if a child “born during the continuance of a valid marriage between his mother and any other man, or within two hundred eighty (280) days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of those men”.[3] It plays a significant role in determining the legitimacy of a child, as the Supreme Court in the case of Goutam Kundu v. State of West Bengal, pointed out the doctrine of presumption of irrebuttable, which means the presumption of legitimacy can only be displaced by a strong preponderance of the evidence, where no reasonable doubt is left and not a mere balance of probabilities.
In the case of Shyamlal v. Sanjeev Kumar, the Supreme Court specifically stated that “on the proof of legitimacy of marriage, there is a strong presumption about the legitimacy of a child born out of that wedlock” It can only be rebutted if strong, clear and satisfying evidence is present before the Court which clearly show no access of husband and wife beyond reasonable doubt.[4]
EXCEPTION OF NON-ACCESS
For presumption of legitimacy, only one exception is there, which is “parties to marriage had no access to each other at any time when they could have been begotten“. But as held in the case of Goutam Kundu v. State of West Bengal, “no access can be proved beyond a reasonable doubt, there must be a strong prima facie case that the husband must prove non-access to dispel the presumption.”[5] Because laws do not want to compromise the legitimacy of newborn children to be under any shadow of doubt or uncertainty. In the absence of evidence court presumes the child to be a legitimate child of the husband.
In the case of Karapya Servai v. Mayandi, the Privy Council defined the term “access” as the existence of an opportunity of marital intercourse, whereas non-access as non-existence of opportunity of sexual intercourse; however, it does not mean actual Cohabitation.[6] This principle gained approval by three-judge benches in the case of Chilukuri Venkateshwarlu v. Chilukuri Venkatnarayana. Recently Supreme Court gave direction that “A husband can question the legitimacy of a child only when he can prove ‘non-access’- impossibility, not merely the inability of the spouse to have marital relations with the other- when the child was conceived.[7]
SUPREME COURT ON LEGITIMACY AND PATERNITY
In Ivan Rathinam v Milan Joseph, the Supreme Court reaffirmed that a child born during a valid marriage is presumed legitimate, and this presumption automatically proves the husband’s paternity, provided the spouses had access during the probable period of conception. The Court rejected the argument that legitimacy and paternity are separate concepts, holding that legitimacy necessarily implies paternity unless non-access is proved.
In this case, the respondent claimed that the appellant was his biological father, despite being born during his mother’s marriage to another man. The family court dismissed the suit, relying on section 112 of the Indian Evidence Act, which creates a strong presumption that a husband is the father of a child born in wedlock.[8] The Supreme Court confirmed that this presumption applies unless clear evidence shows that the spouses had no access during the relevant time.
The Court noted that the respondent’s mother and her husband had lived together for years and had access when the child was conceived. Even if the mother may have had relations with another man, such “multiple access” does not undermine the legal presumption of legitimacy. It was emphasised that the presumption can be rebutted only by proving the impossibility of access, not merely by suggesting emotional separation or alternative relationships.
Thus, the ruling clarifies that legitimacy and paternity go hand in hand: when a child is born in a subsisting marriage, legitimacy is conclusive unless strict proof of non-access displaces it, and neither allegations nor evidence of simultaneous access will suffice.[9]
DNA/ BLOOD TESTING AS EVIDENCE
The Supreme Court in the above case weighed the Right to privacy and dignity against the child’s legitimate interest in knowing their biological father. It noted that compelling an individual to undergo a DNA test could subject his private life to public scrutiny, which could harm his reputation and dignity. Recognising the importance of privacy, the court ruled in favour of the Appellant (ex-husband), allowing his appeal, and setting aside the order for the DNA test.
The court stated, “When dealing with the eminent need for a DNA test to prove paternity, this court balances the interests of those involved and must consider whether it is possible to reach the truth without the use of such a test.” Primarily, the courts must, therefore, consider the existing evidence to assess the presumption of legitimacy. If that evidence is insufficient to come to a finding, only then should the court consider ordering a DNA test. Once the insufficiency of evidence is proved, the court must consider whether ordering a DNA test is in the best interests of the parties involved and must ensure that it does not cause undue harm to the parties…,”[10]
In the Goutam Kundu v. State of West Bengal, while deciding this case, the Supreme Court made the following observations –
- The Indian courts cannot order of blood test as a matter of
- Applications made for a routine inquiry; the blood test cannot be
- A strong prima facie case of non–access has to be established by the husband to dispel the presumption under Section 112 of the Indian Evidence Act.
- The consequence of ordering the blood test must be carefully examined by the court, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
- No person can be compelled to give a blood sample for [11]
CONCLUSION
The presumption of legitimacy under Section 116 of the BSA is still essential for protecting children and supporting family stability, but when it overlooks biological truth, it risks creating injustice rather than preventing it. The law must evolve with scientific realities by allowing DNA evidence in limited, judicially controlled situations, without undermining the dignity and security that the presumption looks to preserve. Striking this balance will ensure that the legal framework serves both the emotional and social protection of children and the fundamental pursuit of truth, shaping a just and modern approach to paternity in India.
Author(s) Name: Pratiksh Sharma (ILC, Faculty of Law, University of Delhi)
References:
[1] The Constitution of India, 1950, art 21.
[2] Rohan Aryan Srivastava, ‘Presumption as to the Legitimacy of a Child under the Evidence Act’ (Jus Corpus, 9 October 2022) < https://www.juscorpus.com/presumption-as-to-the-legitimacy-of-a-child-under-the-evidence-act/ >11 November 2025.
[3] Bharatiya Sakshya Adhiniyam 2023, s 116
[4] Shyamlal v Sanjeev Kumar AIR 2004 SC 217.
[5] Goutam Kundu v State of West Bengal (1993) 3 SCC 418.
[6] Karapya Servai v Mayandi AIR 1934 PC 49.
[7] Chilukuri Venkateshwarlu v Chilukuri Venkatnarayana AIR 1954 SC 176.
[8] Indian Evidence Act 1872, s 112
[9] Ivan Rathinam v Milan Joseph 2025 INSC 115.
[10] Kumar Amogh, ‘Presumption of Legitimacy of Child under the Indian Evidence Act, 1872’ (Law Column, 18 February 2024) < https://lawcolumn.in/presumption-of-legitimacy-of-child-under-the-indian-evidence-act-1872/#Section_112_of_Indian_Evidence_Act_1872 > accessed 11 November 2025.
[11] Goutam Kundu v State of West Bengal (1993) 3 SCC 418.
