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Section 112 of the Evidence Act provides for the legal presumption as to the legitimacy of the child born during the subsistence of a valid marriage or within a certain period after the dissolution of the marriage provided the mother of the child does not remarry. This section is based on the English rule that a child born out of the wedlock should be treated as the child of the man who was, at the time of the birth of the child, the husband of its mother. The presumption raised under this section is a conclusive proof defined under section 4 of the Act and there is no option of rebuttable. However, this section was drafted when the scientific techniques of determining paternity like DNA profiling were farfetched.
This article aims to analyze the scope of section 112 of the Act in light of the scientific techniques and the refutability of the conclusive proof under this section. This article also dwells into the rigour of this section as far as the non-access of the parties to each other is concerned.
Key Words: Conclusive Proof, DNA Profiling, Legitimacy, Non-access, Valid Marriage, Presumption.
Introduction
Section 112 of the India Evidence Act, 1872 is adopted from the English rule – Pater Est Quem Nuptioe Demonstrant, which means “He is the father whom the nuptials indicate”. It was held in the case of Banbury[1] that when a child is born during the valid marriage and the husband has not yet separated from the wife through a divorce, the presumption of sexual intercourse having taken place is raised until it is rebutted by evidence and as per the laws of nature, the husband shall be the father of the child.
In furtherance of this English rule, the legislative spirit of Section 112 is that once a subsisting valid marriage is proved between two individuals, a conclusive presumption as to the legitimacy of the child is raised to be born out of the wedlock. Such presumption can be refuted by only accurate scientific evidence which is conclusive in nature and not otherwise on a mere balance of probabilities. The section is based on the principle of odiosa et inhonesta non sunt in lege prasumenda, that is, the law will not presume something that is odious or dishonourable.
The court always rules in favour of the legitimacy of the child and against bastardy, vagrancy, immorality and vice as illegitimacy tends to mean that the woman was unchaste and the child is a bastard. It becomes imperative in a civilized society to conclusively presume the legitimacy of the child during the continuance of wedlock when both the parties had access to each other. The penultimate object of this section is to uphold the public policy, morality and interest.[2] It becomes significant to determine the legitimate paternity of a child in order to establish the legal heirship for the purposes of succession, custody, maintenance, etc.
This section can be divided into two parts – firstly, that the child was born to the mother during the continuance of a valid marriage between the mother and any man and; secondly, if the child is born within 280 days (period of gestation) from the day of dissolution of marriage and the mother of the child does not remarry, it shall be conclusive proof that the child is the legitimate child of this man unless effective non-access is proved on part of the husband anytime when the child could have begotten.
Conclusive Proof – Presumption under Section 112
Presumption refers to an acceptance of something as true when there is no evidence to the contrary. It is derived from a Latin word ‘praesumere’ meaning an inference or an affirmation of the truthfulness or falsehood of a proposition or a fact.[3] The presumption is defined under section 4 of the Act as may prove, shall prove and conclusive proof.
The standard of proof under section 112 is conclusive proof which means that the court does not have the discretion to raise presumption instead it’s a compulsion. The court shall on proof of one fact regard the other fact as proved and the court will not allow giving evidence to rebut or disprove it. It means that conclusive proof is irrebuttable. However, under section 112 the operation of conclusive proof can be avoided by adducing accurate scientific report proving non-accessibility or paternity but such evidence should be produced before the presumption is raised.
The court will any day rely on accurate scientific evidence rather than raising the presumption. The entire objective of raising the presumption was that there were no scientific techniques that could ascertain the paternity of the child when the Act was drafted but same is not the case in the present scenario.
The nature of conclusive proof as provided for under section 4 is distinct from that envisaged under section 112 of the Act as the latter provides for an escape from the rigour of conclusiveness. That is, if the parties can showcase that they have no effective access to each other at the time when the child might have begotten, the conclusive presumption shall not be raised.[4] Here, the burden of proof is on the party that claims illegitimacy.[5] The rationale is that the child should not suffer because of the laches of the parents and hence by default legitimacy is presumed. The words “access” or “non-access” refers to the effective opportunity of having sexual intercourse, that is, no more than an opportunity of having intercourse.[6]
Legitimacy of Child and Scientific Reports
In accordance with the English Law, evidence as to the non-accessibility by the husband or the wife of non-intercourse after marriage is inadmissible as such admissibility will bastardize the child.[7] This feature under the India Evidence Act, 1872 is however distinct than the English law – it doesn’t render the evidence inadmissible either on part of the husband or the wife instead the burden of proof in India oscillates between the two parties depending on the case facts.[8] In India, the party claiming he is not the father of the child can rebut the presumption through accurate reports like that of DNA and RNA.
The court in case of Gautum Kundu v. State of West Bengal[9] held that the court cannot order a blood test for DNA as a matter of routine as it will result in bastardizing the child and proving the mother unchaste which is not in line with public morality and policy. Instead, there must be a very strong prima facie case wherein the husband has proved the non-access to rebut the presumption under section 112 and thereafter the court should examine the consequences of the test and most importantly a person cannot be compelled to give a blood sample for DNA as it is against the right to privacy[10] and right against self-incrimination of the father.[11]
Thereafter, the court in case of Kanti Devi[12] moved a step further and held that modern scientific advancements like DNA (deoxyribonucleic acid) and RNA (ribonucleic acid) were not contemplated by the legislature while drafting the Act. These tests are genuinely said to be scientifically accurate. But this test in itself is not sufficient to prove the illegitimacy of the child. For instance, if the husband and wife are living together in a valid marriage at the time of conception and later the DNA proves that the child is not of the husband, the conclusiveness as to the legitimacy of paternity remains irrebuttable. It’ll be a compulsion for the husband to bear the fatherhood of the child born. Therefore, in addition to DNA profiling, it becomes important for the party to prove non-access to the other party for intercourse.
Later in Shradha v. Dharmal[13] the court held that family court can order a person to undergo a medical test in order to establish illegitimacy but cannot compel this person and such order shall not be considered to be in violation of Article 21, however, such order shall be passed only when there is a strong prima facie case. If the person refuses to undergo examination the court can draw an adverse inference against him.
The Indian Evidence (Amendment) Bill, 2003 proposed the recommendations of the 185th Law Commission Report with respect to section 112 of the Act so as to accept and incorporate the changes with respect to scientifically accurate reports and statutorily make such investigations with the consent of the parties. However, the same has not yet been incorporated in the Act.[14]
Conclusion
Principles of public policy and public morality are reflected under section 112 through the legal presumption of legitimacy. The standard of presumption is conclusive proof which can be rebutted only by proving non-access by the parties; such non-access should be effective and should not be enough to give an opportunity of having intercourse. The proof of non-access is based on a strong prima facie evidence founded on a strong preponderance of evidence and not merely on the balance of probabilities.
No other evidence, including DNA profiling, is sufficient to rebut the presumption until and unless non-access is proved. The court as a matter of rule will always be inclined to raise the presumption in favour of legitimacy to avoid bastardization of the child and prove the mother unchaste. The Act is a dynamic and not static one and hence the scientifically advanced techniques which were not contemplated at the time of the drafting of the Act are recommended by the Commission to form part of the Act and till then the foresighted interpretation of the Apex Court is being adhered to.
[1] Banbury Peerage case (1811) 1 Sim. & St. 153: 57 E.R. 62
[2] Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454
[3] Izhar Ahmed v. Union of India, AIR 1962 SC 1052.
[4] Kamti Devi v. Posh Ram, AIR 2001 SC 2226
[5] Chiluturi Venkateswarlu v. Chilukuri Narayana, 1954 AIR 176
[6] Karapaya Servai v. Mayandi, AIR 1934 PC 49
[7] Russell v. Russell, (1918) 57 S.C.R. 1.
[8] Caesar Roy, Presumption as to Legitimacy in Section 112 of The Indian Evidence Act Needs To Be Amended, Journal of The Indian Law Institute, Vo. 54 No. 3 (2012) pp. 382-399 available at https://www.jstor.org/stable/44782478
[9] Gautum Kundu v. State of West Bengal, AIR 1993 SC 2295
[10] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
[11] State of Bombay v. Kathi Kalu Oghad, 1962 SCR (3) 10
[12] Kanti Devi v. Poshi Ram, AIR 2001 SC 2226.
[13] Shradha v. Dharmal, (2003) 4 SCC 493
[14] Mahendra Lomte, A Critical Analysis of Legal Presumption of Legitimacy of Child under Section 112 of the Indian Evidence Act, 1872, International Journal of Law, Vol. 3, Issue 2, 2017, pp. 50-52 available at www.lawjournals.org
