Question: Is there any presumption of law relating to the legitimacy of the child? Discuss it in detail. [Bihar J. 2014] or Decide paternity of the child in the following cases: A married B. After marriage within 5 months, B delivered a child. A married B. The wife B was living in adultery. She delivered a child. A… Read More »

Question: Is there any presumption of law relating to the legitimacy of the child? Discuss it in detail. [Bihar J. 2014] or Decide paternity of the child in the following cases: A married B. After marriage within 5 months, B delivered a child. A married B. The wife B was living in adultery. She delivered a child. A is the paramour of B. Mistress B delivered a child during the period of her concubinage. Is the presumption of paternity available for this child? Find the answer to...

Question: Is there any presumption of law relating to the legitimacy of the child? Discuss it in detail. [Bihar J. 2014]

or

Decide paternity of the child in the following cases:

  1. A married B. After marriage within 5 months, B delivered a child.

  2. A married B. The wife B was living in adultery. She delivered a child.

  3. A is the paramour of B. Mistress B delivered a child during the period of her concubinage. Is the presumption of paternity available for this child?

Find the answer to the mains question only on Legal Bites. [Is there any presumption of law relating to the legitimacy of the child? Discuss it in detail. [Bihar J. 2014]

or

Decide paternity of the child in the following cases:

  1. A married B. After marriage within 5 months, B delivered a child.
  2. A married B. The wife B was living in adultery. She delivered a child.
  3. A is the paramour of B. Mistress B delivered a child during the period of her concubinage. Is the presumption of paternity available for this child?]

Answer

SECTION 112—Birth during the marriage, conclusive proof of legitimacy.

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 son 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.

According to Section 112, the fact that any person was born:

  1. during the continuance of a valid marriage between his mother and any man, or
  2. within two hundred and eighty days after its dissolution (the mother remaining unmarried),

is conclusive proof that he is the legitimate son 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. In such a case, the court ‘shall presume’ the legitimacy of the child and such presumption is conclusive proof of the fact that the child was born out of a valid marriage and considers his legitimacy.

The presumption of legitimacy is a presumption of law, not a mere inference to be drawn by a process of logical reasoning from the fact of marriage and birth or conception during wedlock. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities.

Section 112, which applies only to a married couple, lays down the rule for the proof of the paternity of an individual. In the leading case of Goutam Kundu v. State of W.B. (AIR 1993 SC 2295), the court pointed out that Section 112 is based on the maxim Pater est quem nuptiae demonstrant (he is the father whom the marriage indicates).

It is an irrebuttable presumption of law that a child born during lawful wedlock is legitimate and that there was access between the parents. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities… There must be a strong prima facie case in that the husband must establish non-access to dispel the presumption arising under this section. Access and Non-access mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation.

The following important points, regarding Section 112, may be noted:-

  1. This section refers to the time of the birth of the child as the deciding factor and not to the time of conception of that child; the latter point of time has to be considered only to see whether the husband had no access to the mother.
  2. As legitimacy involves ‘sexual intercourse’ between husband and wife, there is, therefore, a presumption when a child is conceived and born during a marriage that such intercourse took place at a time when according to the laws of nature, the husband could be the father of the child.
  3. The presumption applies with equal force even where the child is born within a few days or even hours after the marriage. Further, it is immaterial that the mother was married or not at the time of the conception.

Decide paternity of the child in the following cases

1. A married B. After marriage within 5 months, B delivered a child

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 son 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.

So, in the present case, when A married to B delivered a child within 5-months of the marriage, there shall be conclusive proof in regard to the legitimacy of the child, born out of the valid marriage between A and B, 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.

In the case of Bessi Devi v. Chatru Devi, AIR 2010 HP 26, the mother of the daughter (plaintiff) stated that before marriage she had relations with a person and became pregnant with him and gave birth to the daughter after three months of marriage. The court said that the mother was the best person to prove the paternity of the daughter.

The fact that her husband married her knowing that she was pregnant and took the responsibility of bringing up the daughter could not give the plaintiff the legal status of being his daughter. She had no right to challenge the “will” of the husband which did not carry her name.

2. A married B. The wife B was living in adultery. She delivered a child.

Strictly speaking, there are two presumptions under section 112, one rebuttable and the other irrebuttable.

First, there is a presumption in favour of the legitimacy of the child born during wedlock; in other words, there is a presumption that the husband had intercourse, with the wife at the time the child must have been conceived. But this is a rebuttable presumption and can be negated by adducing cogent evidence.

However, the presumption of legitimacy will not be allowed to be rebutted by the proof that the wife had an adulterous relationship. Proof per se that the woman was living with the paramour is no evidence of non-access by the husband. It may be noted that if sexual intercourse is proved the law will not permit an enquiry whether the husband or some other man was more likely to be the father of the child, the presumption of legitimacy then becomes irrebuttable.

Therefore, in the present case when A and B are husband and wife and B was living in adultery and delivered a child, no presumption can be raised regarding the illegitimacy of the child unless it is proved A had no access to B. As the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory.

3. A is the paramour of B. Mistress B delivered a child during the period of her concubinage. Is the presumption of paternity available for this child?

The principle of section 112 does not apply to the case of a paramour and the presumption can be rebutted when the mother of the child is not a wife but a mistress and it may be open for the mistress to prove that the real father of the child born during the period of her concubinage is different from her paramour as clarified in the case of Maina v. Deorao, (1942) Nag 383.

Therefore, in the present case at hand, where mistress B delivered a child during the period of her concubinage, the presumption of paternity of the child shall not be allowed under section 112 of the Indian Evidence Act.


Important Mains Questions Series for Judiciary, APO & University Exams

  1. Law of Evidence Mains Questions Series Part-I
  2. Law of Evidence Mains Questions Series Part-II
  3. Law of Evidence Mains Questions Series Part-III
  4. Law of Evidence Mains Questions Series Part-IV
  5. Law of Evidence Mains Questions Series Part-V
  6. Law of Evidence Mains Questions Series Part-VI
  7. Law of Evidence Mains Questions Series Part-VII
  8. Law of Evidence Mains Questions Series Part-VIII
  9. Law of Evidence Mains Questions Series Part-IX
  10. Law of Evidence Mains Questions Series Part-X
Updated On 2021-10-07T19:40:38+05:30
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