SC Rules Husband as Legal Father in Extramarital Affair Case

New Delhi: In a landmark ruling, the Supreme Court has upheld that the legal father of a child born from a woman’s extramarital affair remains her husband, despite biological evidence to the contrary. The decision, made on January 28, comes after a prolonged debate on paternity and legitimacy, and was triggered by a case originating in Kerala.

Justices Surya Kant and Ujjal Bhuyan, who examined legal precedents from the UK, US, and Malaysia, ruled that the husband is the legal father as long as the marriage is valid and the spouses had access to each other. Referring to Section 112 of the Indian Evidence Act, Justice Kant emphasized that the husband’s status as the father holds during the marriage, and he can only challenge the legitimacy if he can prove non-access, meaning the impossibility of having marital relations.

The case involved a woman who admitted her second child, born in 2001, was a result of an extramarital affair, but her husband’s name was registered as the father in the official records. After their divorce in 2006, the woman sought to have another man’s name listed as the child’s father. The Kerala courts had ordered a DNA test for the man involved in the affair, but the Supreme Court rejected this, citing privacy concerns and the harm to his reputation. The court ruled that compelling a DNA test would expose private life and damage personal dignity.