The recent groundbreaking ruling of the Supreme Court of India that the husband remains the legal father of any child born out of wife’s adultery as long as the marriage is valid despite biological evidence, has raised questions on what the law says in Nigeria, especially in view of the provisions of Section 165 of the Evidence Act. YEJIDE GBENGA-OGUNDARE reports.
When a news platform, Financialexpress.com last week reported that the Supreme Court of India has ruled that the husband remains the legal father of any child born out of a wife’s adultery, as long as the marriage is still valid despite biological evidence, many were shocked that the court would take such a stance even in the face of compelling evidence, wondering if the apex court is legitimising infidelity.
In the Nigerian society, the institution of marriage is sacred and guided/guarded by laws, culture, religion and norms. The average Nigerian man makes it a priority to know the extent of his progeny beyond doubts, though it is usually said that it is easier for women to establish a child’s legitimacy than men.
Adultery in a marriage, either by the man or woman is reprehensible and legally constitutes a ground for divorce. And it is expected that where there are children in the marriage, their paternity should not be in question, and in cases where the paternity of a child is found to be questionable, the mother and the child are seen as aberration and a disgrace; with the yoke of illegitimacy haunting the child. Consequently, it has been held that paternity is an inalienable right of the child as every child must have a father, and one father only.
This is why last week’s groundbreaking ruling of the Supreme Court of India on the complex conflict between paternity and legitimacy, arising from the birth of a child to a woman and a man who is not her husband, has continued to generate mixed reactions, considering the position that if a marriage remains valid and the spouses have had access to each other, the husband is considered the legal father of the child, even if he is not the biological parent.
Justices Surya Kant and Ujjal Bhuyan examined the family law precedents in the UK, US and Malaysia which tend to presume legitimacy while allowing for DNA tests if legitimacy is contested.
Justice Surya Kant, in the judgment, referred to Section 112 of the Indian Evidence Act, which establishes a strong presumption that a husband is the father of a child born to his wife during the subsistence of their marriage and emphasised that the purpose of this presumption is to prevent unwarranted inquiries into a child’s parentage.
India sides with justice
According to the judgment, the burden of proof falls on those who assert a child’s illegitimacy, and it can only be proved through the assertion of “non-access,” meaning that the husband can challenge the legitimacy of the child only if he can prove that he had no access to his wife at the time of conception.
The court further clarified that “non-access” means the impossibility of marital relations between the spouses, not just an inability. To rebut the presumption of legitimacy, one must assert non-access and substantiate it with evidence.
“Non-access means the impossibility, not merely inability, of the spouses to have marital relations with each other. For a person to rebut presumption of legitimacy, they must first assert non-access which, in turn, must be substantiated by evidence,” the court said.
The matter was based on the issue of a woman who admitted to conceiving a child with a man other than her husband while still married. In 1991, the woman gave birth to a daughter, and in 2001, she had a son. The husband’s name was recorded as the “father” of the boy in the Municipal Corporation of Cochin’s birth register.
However, due to marital differences, the couple began living separately in 2003 and later filed a joint divorce application, which was granted by the family court in 2006. After the divorce, the woman approached the municipal corporation, requesting that the name of another man be entered as the child’s “father.”
She claimed that the other man was the biological father of the boy, following an extramarital affair. The corporation, however, stated that it could only make such a change if ordered by a court.
The Kerala courts then ordered a DNA test for the man, but he challenged this decision in the Supreme Court. Senior Advocate Romy Chacko argued that forcing the man to undergo a DNA test would violate the provisions of Section 112 of the Evidence Act, which presumes the husband to be the father unless proven otherwise.
In its judgment, the Supreme Court weighed the right to privacy and dignity against the child’s legitimate interest in knowing the biological father. The court 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 Supreme Court ruled in favor of the man, allowing his appeal and setting aside the order for the DNA test.
“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. First and foremost, 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 established, 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…,” the judgment read in part.
The Nigerian Situation
The judgment which is reverberating through the jurisprudential world has once again, thrown up the unending questions about the legal status of illegitimate children in the Nigerian society, where the concept of legitimacy remains a complex and a often-misunderstood area of family law as recently demonstrated in the case of a commissioner in Bauchi State cabinet and his former wife. By forcibly taking his daughter, he is being accused of abduction.
In Nigeria, the rights or legal status of children born out of wedlock or during the course of a marriage but not biologically belonging to the husband has been a source of debate and legal uncertainty over the years, but with evolving societal norms and legal reforms, there is a growing shift toward protecting the rights and welfare of all children, regardless of their circumstances of birth.
Nigeria operates a plural legal system, encompassing customary law, Islamic law, and statutory law, with all impacting the treatment of ‘illegitimate children’. And legally, in Nigeria, a child born outside a lawful marriage or one whose paternity does not align with the husband in a subsisting marriage. It is considered illegitimate though the provisions of Section 165 of the Evidence Act say that a child born to a married woman is presumed to belong to her husband.
It says “The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”
This indicates that there is a legal belief that a child born within a marriage is the husband’s offspring unless rebutted with credible evidence. This is further backed by Section 84 of the Matrimonial Causes Act, 1990, Order XI rules 21(1) and 23 of the Matrimonial Causes Rules and Section 165 of The Evidence Act, 2011. These provisions indicate that it is abnormal to enquire into the paternity of a child whose parents have access to each other. Hence, medical examination of any child born during existence of a valid marriage is uncalled for. This act, it is believed, will degrade the sanctity of marriage and is contrary to public policy
The Rhodes-Viviour’s precedent
This is proved in the case Oduche V. Oduche (2006] 5 NWLR (Part 972) pg 102 where Rhodes-Vivour, J.C.A held that “where the husband and wife have co-habited together and no impotency is proved to the satisfaction of the court, the child or children are conclusively presumed to be legitimate even though the wife is shown to have been, at the same time guilty of infidelity, and even where the parents are living apart a very strong presumption of legitimacy still arises, and it can only be rebutted by irresistible proof of non-access to sex.”
The case involved a couple that got married in 1984, had two children and the wife had another child six months after leaving the husband. The man claimed custody of the three children and the wife refused, changing their surname on the argument that the three children did not belong to her husband. She also alleged that the husband is impotent. But the man insisted that the children are his, and did not submit to any medical examination. The court held that the presumption of legitimacy is in his favor and also granted him custody of the first child.
This is the same position under customary and Islamic law as witnessed in the case of Rabiu V. Amadu 2003, 5 NWLR (PART 813). In the case, the father denied paternity of a child born eight months after the wedding and the court held that “under no circumstance shall pregnancy or child of the marriage be denied except where the wife delivers a complete baby within a period lesser than six months; five or six days less, from the date of the marriage contract.
Under the Sharia, a child conceived in lawful and valid wedlock is a legitimate child of a man so lawfully and validly married to the mother. This is because under the Sharia, the legitimacy of a child is proved by the proof of the existence of a lawful and valid marriage between the parents at the time of the child’s conception. Thus where there is a valid marriage in accordance with the Islamic law’s dictates, the child is never considered illegitimate.
According to Mohammed, JCA, at page 372, paras. D-G, NWLR, “There is no doubt that the natural outcome of any marriage is procreation and such children cement the relationship between the married partners. It is marriage that also brings about legitimate children. This is the reason why Islam prohibits ZINA or fornication and marriage is made a strong SUNNAH. The children born during the existence of a valid marriage bear the name of the father as the Hadith of the Prophet Muhammad (SAW) states: “The child belongs to one on whose bed it is born.”
Apex court concurs
Also in Idahosa V.Idahosa, 2020, 6NWLR (PART 1720), Okoro, J.S.C, in supporting the lead judgment of Peter-Odili,J.S.C.) held that the law is trite that any person born during the continuance of a valid marriage shall be presumed to be a child of the husband. The burden of proving otherwise rests with the party alleging the contrary. As further established in Ukeje v. Ukeje (2014) 11 NWLR (Pt. 1418) 384, it is instructive to note that under Nigeria’s law, evidence to dislodge paternity requires the one who is asserting to prove beyond reasonable doubt.
The place of DNA.
The principle underlying the rule of legitimacy is obvious. It is most undesirable to enquire into paternity of a child where parents have access to each other. Hence, where there is dispute about the paternity of a child born during wedlock, the presumption is that the husband is the father of that child. However, that presumption of legitimacy as contained in Section 165 of the Evidence Act is rebuttable and may be displaced if it is proved that parties to the marriage had no access to each other, but the evidence must be strong.
Access must also be seen to be impossible on account of illness, impotence and that the husband is physically incapable of having sexual intercourse with his wife. Then there is the scientific evidence angle, which must show that the child was in fact fathered biologically by another man.
One of the modern scientific means of determining the paternity of a child is the DNA test. Section 57 of the Child Right Law of Lagos State empowers the court to order the use of scientific tests including blood test and DNA where paternity is in dispute. However, consent of the parties concerned is required for the taking of the blood. Where the parties concerned have not attained the age of sixteen, the consent of the person who has the care and control of the child is to be sought. Where the father or mother refuses to give the requisite consent, it will be presumed that the child is legitimate, in line with Section 84 of the Matrimonial Act to the effect that parties to a marriage cannot be compelled to give evidence that will prove a child illegitimate.
The evidence required to rebut the presumption of legitimacy of a child under Section 165 of the Evidence Act must be strong, clear and conclusive. It must lead to the irresistible conclusion that the child is not the offspring of the husband.
Islamic jurisprudence
Under the Maliki School of Islamic jurisprudence which is applicable in the former Northern region of Nigeria, a medical report is considered as unreliable in determining the paternity of a child born by a woman who is not a slave. To deny paternity under Islamic law, husband can disown a child born in lawful and valid wedlock by subscribing to the oath of lian (mutual imprecation) that a child is not his own and that he suspects his wife of having had illicit relations with other men. At the end of the lian or oath, the spouses shall separate themselves permanently and the child thenceforth remains the sole responsibility of its mother. Also, a husband may disown a child where the wife delivers a complete baby within a period less than 6 months 5 or 6 days less, from the date of the marriage contract.
Nigerian courts in plethora of cases have placed heavy reliance on the presumption provided for under Section 165 of the Evidence Act in the determination of the paternity or legitimacy status of a child. This rebuttable presumption clothes the court with the power to make certain inferences as to the paternity of a child once it is established that such a child was given birth to, during the subsistence of a valid marriage.
The court is further empowered under the Act to presume that the product of an extramarital affair is a legitimate child of the subsisting valid marriage, and rebutting such a claim requires solid proof of nonaccess to s3xual relations or the consent of all parties to go scientific by getting a DNA test.
and then