Authored By: Dimple Rathee, Rajiv Gandhi National University of Law, India, Research Writer at Law Audience®,
Edited By: Mr. Varun Kumar, Advocate, Himachal, Punjab & Haryana and Founder at Law Audience.
Marriage is considered a sacrament in Hindu culture which basically before enactment of Hindu Marriage Act,1955 meant that it created indissoluble union between the parties[i]. However, enactment of statutory regime meant a departure from the traditional marriage law of the Hindus, especially in the context of the recognition of divorce and more particularly with the introduction of divorce by mutual consent [ii].Some of the main matrimonial relief under Hindu Marriage Act are Divorce and Judicial Separation. The term “divorce” comes from Latin word “divortium” which means to turn aside; to separate[iii]. It is legal cessation of matrimonial bond [iv]. For Divorce under Hindu Law either a ground under Section 13 HMA must be satisfied or application for same must be filed by mutual consent under S13B HMA. Whereas unlike divorce, judicial separation doesn’t put end to marriage, neither the couple has obligation to cohabit nor can they remarry. If couple decides to get together again, the decree can be rescinded (S 10(2) HMA) else after lapse of one year (statutory period) it becomes a ground for divorce[v]. In today’s time though the Divorce Rates in India are relatively less common than Western countries but are still on rise than previous times. It is well documented that divorce proceedings get complicated where false allegations were used as leverage in divorce proceedings. A study observed that over 30% of marital disputes in family courts involved allegations that were later retracted or found to be unsubstantiated.[vi] Author through practical exposure at courts observed that it is very likely for husband to contend in maintenance and inheritance for child cases that child was born out of his wife’s illicit relationship with some other men which means he is not the father and thus must not be asked to maintain and provide inheritance rights to the child. With the advent of technology, DNA Test came up as a test to establish paternity so as to determine the reality of claim made by husband and with that Supreme Court in various cases faced the question whether DNA Test can be ordered in every case where such claim is made. This article will deal with details of this question and related aspect.
INTRODUCTION:
Maintenance is duty of husband to financially support wife during marriage and even after divorce if she lacks any source or even if she is financially independent, as the concept of maintenance and alimony encompasses a right to sustenance that allows the spouse to live in a manner suited to her status and standard of living[vii], till the time in case she remarries because “wife” includes a woman who has been divorced or has sought a divorce from her husband and has not remarried as per Section 125 Crpc . Husband is also supposed to maintain child if wife gets their custody and this duty continues even if wife remarried. Section 125- 128 Crpc and Section 20 of Hindu Adoption and Maintenance Act, 1956 deals with maintenance for children and aged parents. In case of overlap of jurisdiction among both SC held that court may consider adjustments or set off the amount granted in the prior proceedings which is to be revealed by the applicant[viii].
CONCEPT OF ILLEGITIMACY UNDER HINDU LAW
The term ‘illegitimate’ derives from the Latin word ‘illegitimus’ means ‘Something which is contrary to the law or not in accordance with law’ [ix]Under Hindu Marriage act though a definition of illegitimate child is not provided which leads to ambiguity still the legitimacy of child under law depends on kind of relationship that they are born out of. A legitimate child is one born out of valid marriage, one that complies with grounds of Section 5 and 7 of Hindu Marriage Act, 1955 whereas an illegitimate child according to act is one born out of void and voidable marriages who are still entitled to equal share in father’s property as per Section 16(3) of Hindu Marriage Act, 1955 as well to maintenance as Section 125 Crpc[x]. But the term illegitimate in sense referred in here leaves out a child born out of relationship that is not marriage. Such illegitimate children are though still entitled to maintenance from both parents under Section 125 Crpc, but right to inheritance in father’s coparcenary property is not granted as relationship of such child is just recognized with mother and not with father.
PATERNITY VS LEGITIMACY
Legitimate child is a concept rooted in law which means one born during subsistence of valid marriage between two people while paternity is a concept based on science which implies that a legitimate child not necessarily be a biological child. While technically there is difference between both the terms but as per, Indian Law conclusive presumption of legitimacy is paternity which implies that courts do not permit independent paternity inquiries once legitimacy is established[xi].
LEGITIMACY OF A CHILD
In Indian law legitimacy is based on legal maxim “pater est quem nuptiae demonstrant” which means, “he is the father whom the marriage indicates to be so.” [xii]Section 112 of Indian Evidence Act deals with legitimacy of child and essentials of it goes as follows:
A child will be considered legitimate if:
+ Child is born during valid marriage or
+ Child is born within 280 days after dissolution of marriage and wife has not remarried
So, this Section provides strong presumption in favor of legitimacy of child and that conclusive proof of legitimacy is paternity which can’t be rebutted by mere allegations but by proof that husband and wife had “non access” at a time when child could have been conceived[xiii]. The burden of proof that there was impossibility, not merely inability, of the spouses to have marital relations with each other [xiv]is on person who asserts ‘illegitimacy’ to displace the presumption of legitimacy under Section 112 of Indian Evidence Act. Also, courts have clarified that ‘additional’ access or ‘multiple’ access does not imply non-access between the spouses.
In Goutam Kundu v. State of W.B[xv], Supreme Court laid down the following parameters to decide whether a court can order a DNA test for the purposes of Section 112:
(1) that courts in India cannot order blood test as a matter of course;
(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.”
Supreme Court has further in line observed on concern of Right of privacy that like other rights Right to privacy is also not a absolute right, Indian Courts have power to order DNA Test given it satisfies the threefold test of “legality, legitimate State aim, and proportionality” as was pointed in landmark judgement of KS Puttuswamy. Once the DNA test has been ordered by court and husband refuses the same, adverse inference against him can be drawn against him by court.
At last, the final position of Supreme court on DNA Test remains as in case of Ivan Rathinam v Milan Joseph that test must sought to ‘balance the interests’ of the parties involved and should be ordered by courts when there is an ‘eminent need’ for a DNA test.
CONCLUSION
Illegitimacy of a child impacts the status and well being of a child in societies like ours where since ancient time illegitimate child as seen as product of sin. The child had no right to maintenance, succession and were also barred from occupying positions of responsibility and social visibility. Today the situation hasn’t changed much with statistical evidence indicating illegitimate children are more likely to face bias, drop out of college and be poorer than children born out of a marriage.[xvi] Though with changing times illegitimate child can claim maintenance from both parents under Section 125 Crpc but has no right to succeed in father’s property since they are believed to be related to just mother, relationship with father is still not recognized. The treatment of illegitimate child remains unfair with no inherent mistake of their own as rightly said by Leon R. Yankwich that “There are no illegitimate children, only illegitimate parents”. So Supreme Court decision of not ordering DNA Test as matter of course and threshold of ordering same has been made “imminent need” is a progressive, in right direction and much needed decision specifically for children as they are the one who bear brunt of society’s judgement without any mistake of their own.
under Sec. 125 of the Criminal Procedure Code, 1973, illegitimate children are entitled to claim maintenance from both biological parents if he/she is unable to maintain.
Footnotes:
[i] Hindu Marriage as A Samskara: A Resolvable Conundrum, 33 JILI (1991) 319
[ii] Hindu Marriage as A Samskara: A Resolvable Conundrum, 33 JILI (1991) 319
[iii] Poonam Pradhan Saxena, Family Law Lectures: Family Law I (LexisNexis 2022)
[iv] Poonam Pradhan Saxena, Family Law Lectures: Family Law I (LexisNexis 2022)
[v] Poonam Pradhan Saxena, Family Law Lectures: Family Law I (LexisNexis 2022)
[vi] Abhijeet Singh and Trusha Shanbhag, Parental Interference and Marital Stability: A Scoping Review of Sociocultural Influences on Indian Families (2025) 50(Suppl 2) Indian Journal of Community Medicine S155–S160
[vii] Kiran Jyot Maini v Anish Pramod Patel (Supreme Court of India, 2024 LiveLaw (SC) 485, 15 July 2024)
[viii] Rajnesh v. Neha & Anr. (2021) 2 SCC 324
[ix] Chavan PD, A Study on Illegitimate Children and Their Rights in India Under Various Personal Laws (2023) 11(11) International Journal of Creative Research Thoughts (IJCRT)
[x] Bakulbhai v. Gangaram, (1988) 1 SCC 537
[xi] Milan Joseph Ivan Rathinam v. Milan Joseph, 2025 SCC OnLine SC 175
[xii] Ivan Rathinam v Milan Joseph (2025) INSC 115; (2025) SCO.LR 1(4) [18]
[xiii] Aparna Ajinkya Firodia v Ajinkya Arun Firodia (Supreme Court of India, Civil Appeal No 1308 of 2023, 20 February 2023) [2023] SCR [4] 680 (SC)
[xiv] Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454.
[xv] Goutam Kundu v State of West Bengal & Anr (1993) 1993 AIR 2295; 1993 SCC (3) 418
[xvi] Illegitimacy: An Illegitimate Concept, (2016) 3.1 IJLPP 87
