IVAN RATHINAM versus MILAN JOSEPH

Citation: [2025] 1 S.C.R. 1009 · Decided: 28-01-2025 · Supreme Court of India · Bench: SURYA KANT · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 9 · see the full citation network in Lexace

Judgment (excerpt)

[2025] 1 S.C.R. 1009 : 2025 INSC 115
Ivan Rathinam 
v. 
Milan Joseph
(Criminal Appeal No. 413 of 2025)
28 January 2025
[Surya Kant* and Ujjal Bhuyan, JJ.]
Issue for Consideration
Whether the presumption of legitimacy, if not displaced, determines 
paternity in law; whether the Civil Court had the jurisdiction to 
entertain the Original Suit and whether the Family Court was 
entitled to reopen the Maintenance Petition; whether the second 
round of litigation, initiated by the Respondent, was barred by the 
principle of res judicata.
Headnotes†
Evidence Act, 1872 – s.112 – Birth during marriage, conclusive 
proof of legitimacy – Respondent and his mother claimed the 
appellant to be the respondent’s biological father despite the 
fact that the respondent was born during the subsistence of 
his mother’s marriage to ‘RK’ – Respondent’s mother alleged 
that she had an extra-marital relationship with the appellant 
due to which he was begotten – Presumption of legitimacy, 
when not displaced, whether determines paternity:
Held: : Legitimacy determines paternity u/s.112 until the presumption 
is successfully rebutted by proving ‘non-access’ – There exists a 
strong presumption that the husband is the father of the child borne 
by his wife during the subsistence of their marriage – Conclusive 
proof of legitimacy is equivalent to paternity – The object of this 
principle is to prevent any unwarranted enquiry into the parentage 
of a child – Since the presumption is in favour of legitimacy, the 
burden is cast upon the person who asserts ‘illegitimacy’ to prove it 
only through ‘non-access’ – Admittedly, when the Respondent was 
begotten in 2001, his mother and Mr. ‘RK’ were married – They 
had been married since 1989 and neither had ever questioned the 
validity of the marriage – They were, admittedly living under the 
same roof from 1989 till 2003, when they decided to separate – 
* Author
1010
[2025] 1 S.C.R.
Supreme Court Reports
Thus, the Respondent’s mother and Mr. ‘RK’ had access to each 
other throughout their marriage, as concurrently held by the courts at 
multiple stages of litigation – Even assuming that the Respondent’s 
mother had relations with the Appellant during her marriage and 
especially when the Respondent was begotten, this per se would 
not be sufficient to displace the presumption of legitimacy – This 
allegation only shows that there were simultaneous access with the 
Respondent’s mother, by the Appellant and Mr. ‘RK’ – However, 
an ‘additional’ access or ‘multiple’ access does not automatically 
negate the access between the spouses and prove non-access 
thereof – Consequently, there is a statutory mandate that the 
Respondent must be presumed to be the son of Mr. ‘RK’ – Plea 
that ‘paternity’ and ‘legitimacy’ are distinct/independent concepts, 
rejected – High Court’s view that ‘paternity’ can be determined 
independent of the concurrent findings regarding the legitimacy of 
the child, unsustainable – Impugned judgment of the High Court and 
the order of the Family Court, set aside – Respondent is presumed 
to be the legitimate son of Mr. ‘RK’. [Paras 28, 32, 33, 70]
Evidence Act, 1872 – s.112 – Birth during marriage, conclusive 
proof of legitimacy – “access”; “non-access” – Meaning:
Held: Access and non-access u/s.112 do not require a party to 
prove beyond reasonable doubt that they had or did not have 
sexual intercourse at the time the child could have been begotten – 
‘Access’ merely refers to the possibility of an opportunity for marital 
relations – In cases where parties may be on non-speaking terms, 
engaging in extra-marital affairs, or residing in different houses in 
the same village, it does not necessarily preclude the possibility of 
the spouses having an opportunity to engage in marital relations – 
Non-access means the impossibility, not merely inability, of the 
spouses to have marital relations with each other – For a person 
to rebut the presumption of legitimacy, they must first assert ‘non-
access’ substantiated by evidence. [Para 29]
Constitution of India – Art.21 – Right to privacy and dignity – 
DNA Test – Evidence Act, 1872 – s.112 – Balancing of interests 
of the parties involved and the ‘eminent need’ for a DNA 
test – Respondent and his mother claimed the appellant to 
be the respondent’s biological father despite the fact that the 
respondent was born during his mother’s marriage to ‘RK’ – 
Respondent’s mother alleged that she had an extra-marital 
[2025] 1 S.C.R. 

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