PRESUMPTION AS TO LEGITIMACY IN SECTION 112 OF INDIAN

EVIDENCE ACT NEEDS TO BE AMENDED

Abstract

The conclusive proof of legitimacy of a child born during the continuance of

a valid marriage is significantly analyzed under section 112 of the Evidence
Act. The gravest problem with the section is that it presumes that sexual
intercourse is an absolute essential for the conception of a child in a woman’s
womb. This presumption is expressed in the non-access clause of the section
i.e. the section says if the man could not possibly have had sexual
intercourse, it cannot be his child. Several modern scientific developments
such as sperm banks, surrogacy, in vitro fertilizations etc. have done away
with the necessity of sexual intercourse i.e. the physical presence of a man
near a woman for the conception of a child. DNA technology can
conclusively establish the truth in such disputes and, therefore, should be
resorted to without any hesitation. In the wake of new scientific inventions
the new available techniques should be adopted in the administration of
justice. It is to be borne in mind that when section 112 was being drafted
even the discovery of DNA was not contemplated and, therefore, this section
should be amended. This is a developing area of the law in which changing
technology may be expected to drive changes in the law.

Introduction

“Maternity is always certain. Paternity is a matter of inferences.”

IN INDIA chastity of the woman and paternity of the child hold much
value and are issues of honour. No person would like to be called a bastard nor
will a woman like to be called unchaste. Section 112 of the Indian Evidence
Act, 1872 deals with the legitimacy of a child. Section 112 of the Act was
enacted at a time when the modern scientific advancements such as
deoxyribonucleic acid (DNA), ribonucleic acid (RNA) tests, sperm bank or
cryobank, in vitro fertilizations, surrogacy etc. were not even in contemplation
of the legislature. Now the medical field is very much advanced and by having
blood alone, the entire body system could be scanned to detect the defect. DNA
technology comes in handy as a latest tool of forensic science, emanating from
genetic science. In sorting out grave issues such as paternity claims,
establishing identity from mutilated remains etc. DNA test is vey much
efficient. The purpose of this paper is to highlight the importance of modern
scientific developments in paternity claims and for which this section may have
to be amended.

www.ili.ac.in © The Indian Law Institute

2012] Notes and Comments 383

Presumption and its classification

Every fact, on the basis of which a party to a proceeding wants to take

judgment, must be proved. No court can, while deciding a case, place reliance
on a fact unless and until it has been proved according to the rules laid down in
the Indian Evidence Act, 1872. But the law of evidence has provided that a
court can take into consideration certain facts even without calling for proof of
them i.e. the court may presume certain things. To presume means to accept
something as true in the absence of evidence to the contrary. The term has been
derived from the Latin word ‘praesumere’, it means to take before or to take for
granted. The term presumption may be defined to be an inference, affirmative
or disaffirmative, of the truth or falsehood of a doubtful fact or proposition
drawn by a process of probable reasoning from something proved or taken for
granted.1 Human beings have a natural instinct to presume on the basis of past
experience or knowledge. Sometimes certain facts are difficult or even
impossible to prove and to test the veracity or otherwise of these facts, one
often infers from experiences and knowledge. This logical deduction being
inherent in the nature of human beings, has found its way into every facet of
human behaviour including the administration of justice. A presumption is not
itself evidence but only makes a prima facie case for the party in whose favour
it exists. It is a rule concerning evidence. It indicates the person on whom the
burden of proof lies.
Mainly, presumption is of two types:
1. Presumption of fact.
2. Presumption of law.
Again, Presumption of law can be divided into two categories –
1. Rebuttable presumption
2. Irrebuttable presumption
According to the Indian Evidence Act, there are three types of presumption.
Section 4 of the Act describes these three types of presumption –
1. May presume.
2. Shall presume.
3. Conclusive proof.

May presume

Whenever it is provided that the court may presume a fact, the court may take
notice of the fact without calling for its proof or may call upon a part to prove that
fact. Whenever the expression may presume has been used in the Act, discretion
has been given to the court to presume a fact or refuse to raise such a presumption.

1 Izhar Ahmed v. Union of India, AIR 1962 SC 1052.

www.ili.ac.in © The Indian Law Institute

384 Journal of the Indian Law Institute Vol. 54 : 3

In cases when discretion lies with the court and it refuses to exercise such
discretion, then it may call upon the parties to prove the fact by leading evidence.
The presumption raised under the expression ‘may presume’ is a presumption of
fact.2

Shall presume

Whenever it is directed that the court shall presume a fact, the court cannot
exercise its discretion. It is compelled to take the fact as proved i.e. it shall have
to presume the fact. But in this case the court will be at liberty to allow the
opposite party to adduce evidence to disprove the fact so presumed, and if the
opposite party is successful in disproving it, the court shall not presume the
fact. The presumption raised under the expression shall presume is a
presumption of law.3

Conclusive proof

Whenever it is mentioned that a fact is a conclusive proof of another fact,

the court has no discretion at all. It cannot call upon a party to prove that fact
nor can it allow the opposite party to adduce evidence to disprove the fact.
When one fact is declared by law to be conclusive proof of another, the court
cannot allow evidence to be given to rebut.4

Presumption as to legitimacy and its significance

In India, section 112 of the Evidence Act embodies the irrebutable

presumption of legitimacy. It reads:
Birth during 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.
So this section deals with law as to the proof of legitimacy as it stands today. It
says that the fact that a person was born during the continuance of a valid marriage
or within 280 days after its dissolution but before the woman remarried someone
else is itself a conclusive proof that the person to whom the mother of the child

2 For example, see ss. 86 to 88, 90, and 114 of the Evidence Act.
3 For example, see ss. 79 to 85, 89, 105, and 107 to 111 of the Evidence Act.
4 For example, see ss. 41, 112, 113 and 115 to 117 of the Evidence Act.
www.ili.ac.in © The Indian Law Institute
2012] Notes and Comments 385

In India, section 112 of the Evidence Act embodies the irrebutable

presumption of legitimacy. It reads:
Birth during 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.
So this section deals with law as to the proof of legitimacy as it stands today. It
says that the fact that a person was born during the continuance of a valid marriage
or within 280 days after its dissolution but before the woman remarried someone
else is itself a conclusive proof that the person to whom the mother of the child

Legitimacy under Hindu law and Muslim law

The Hindu law and Mohammedan law raise similar presumptions as stated
in the section, regarding legitimacy, but while English law gives importance to
the time of birth, Hindu law and Mohammedan law give importance to the time
of conception.
Section 16 of the Hindu Marriage Act, 1955, stood amended vide
Amendment Act of 1976 and the amended provisions read as under:-
Legitimacy of children of void and voidable marriages - (1)
Notwithstanding that a marriage is null and void under section 11, any
child of such marriage who would have been legitimate if the marriage
had been valid, shall be legitimate…
(2) Where a decree of nullity is granted in respect of a voidable
marriage under section 12, any child begotten or conceived before the
decree is made, who would have been the legitimate child of the
parties to the marriage if at the date of the decree it had been dissolved
instead of being annulled, shall be deemed to be theirs would have
been incapable of possessing or acquiring any such rights by reason of
his not being the legitimate child of his parents.
As far as section 16 of the Act is concerned, it was enacted to legitimise
children who would otherwise suffer by becoming illegitimate. At the same time it
expressly provide in sub-section (3) by engrafting a provision with a non-obstante
clause stipulating specifically that nothing contained in sub-section (1) or sub-
section (2) shall be construed as conferring upon any child of a marriage, which is
null and void or which is annulled by a decree of nullity under section 12, ‘any
rights in or to the property of any person, other than the parents, in any case where,
but for the
www.ili.ac.in © The Indian Law Institute
2012] Notes and Comments 387

passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of him not being the legitimate child of his
parents’. In light of such an express mandate of the legislature there is no room for
according upon such children who but for section 16 would have been branded as
illegitimate any further rights than envisaged therein by resorting to any
presumptive or inferential process of reasoning, having recourse to the mere object
or purpose of enacting section 16 of the Act. Any attempt to do so would amount to
doing not only violence to the provision specifically engrafted in sub-section (3) of
section 16 of the Act but also would attempt to court relegislating on the subject
under the guise of interpretation, against even the will expressed in the enactment
itself.
The Supreme Court in PEK Kalliani Amma v. K. Devi5 examined
subsection (1) of section 16 and observed that by virtue of the words
‘notwithstanding that a marriage is null and void under section 11’, this section
stands independent of section 11. The amended provision which intended the
conferment of legitimacy on children born of a void marriage, will operate
despite the provisions in section 11 which has the effect of nullifying only those
marriages held after the Act came into force and which are performed in
contravention of section 5. By virtue of the legal fiction, children born of a void
marriage would have to be treated as legitimate for all purposes including
succession to the property of their parents. The net effect being that the benefit
of legitimacy is conferred upon any child born either before or after the date of
amendment. That would mean that even if a marriage had been contracted at the
time when there was a legislative bar to such a marriage, the offspring of such a
marriage would be treated as legitimate. Such a child would be entitled to
succeed to the property of his or her parents.
Subsection (2) relates to children of a voidable marriage in respect of which
a decree of annulment may be granted by section 12. Even when the validity of
the marriage is challenged by either party and still the marriage is not annulled,
it would be a void marriage, and the children of the parties to such a marriage
would undoubtedly be legitimate. If, on the other hand, the marriage is annulled
at the instance of either party, the children born of such marriage are, by
operation of subsection (2), to be deemed to be their legitimate children for all
interests and purposes, except that by virtue of subsection (3) such children
cannot claim any rights in or over property of any person other than parents.
Actually, section 16(2) requires conception before a decree to be proved
first, before the deeming provision can apply. The position, it was stated, was
different under the Evidence Act under which the date of conception need not
be proved, and proof of the date of birth is sufficient to legitimacy.

5 AIR 1996 SC 1963.

www.ili.ac.in © The Indian Law Institute
388 Journal of the Indian Law Institute Vol. 54 : 3

Under Muslim law the putative father is not recognized for any purpose. It
clings to the concept of “filius nullis”. Under Islamic law, conception during lawful
wedlock determines legitimacy of the child .There is no process recognised under
the Muslim law which confers legitimacy on an illegitimate child. However
Mohammedans have adopted measures like “acknowledgement of paternity” which
are preventive measures to save the children from being bastardised. Mohammedan
law has made a special provision for conferring legitimacy on or rather recognizing
the legitimacy of a child, whether a son or daughter by the doctrine of
acknowledgement of ikrar. It is an acknowledgement of paternity by his putative
father. The person acknowledged must not be the off-spring of zina , which is
adultery in Muslim law, as he would be if his mother could not possibly have been
the lawful wife of the acknowledger at any time when he could have been begotten,
as where the mother was at that time the wife of another man. Adoption or any
equivalent of the same is not recognized under Mohammedan law. It is
conclusively presumed that a child born within less than six months after the
marriage of the mother cannot have been begotten by her husband in lawful
wedlock.6

Anatomy and interpretation of section 112

This section consists of two parts. The first part deals with the birth of a
child during the continuance of a valid-marriage between a man and a woman;
and the second part deals with the birth of a child during 280 days after the
dissolution of that marriage. The section establishes the fact of marriage as
conclusive proof of legitimacy. The only way to rebut the legitimacy is to prove
‘no access’ i.e. he could not possibly have had sexual intercourse with the
mother of the child at any time during which she could have conceived the
child born. This can be proved either by showing that the man was away in
some other city or at a distance from which he could have had no possible
opportunity of having sexual intercourse with the mother or by proving that he
was impotent at all times at which the child could have been conceived. If
however, the husband fails to prove any of these, he shall be deemed to be the
father of the child born. The word ‘begotten’ used in section 112 of the Act
means ‘conceived’ and not ‘born’. The emphasis on birth during wedlock as
against conception is there in section 112 of the Act for the reason that as a
general rule, it is the birth after marriage, which confers legitimacy on a child
until its contrary is not proved.
Under the second part of the section, a child born within 280 days from the
dissolution of a valid marriage will be presumed to be legitimate. So in the case
of widowhood, though cohabitation is not possible, the law will presume in
favour of
6 Sir Roland Wilson, Anglo–Muhammadan Law 159 (Fifth edn.).

www.ili.ac.in © The Indian Law Institute

2012] Notes and Comments 389

chastity of a woman and legitimacy of a child. The presumption of a child born

within 280 days of the dissolution of the marriage, being legitimate is subject to
the condition that the woman remains unmarried. If the woman remarries
before the birth of the child, the second part of the section would have no
application. The child would be presumed to be the legitimate child of the
second husband under the first part of the section unless it is shown that the
second husband had no access to the woman at any time when the child could
have been begotten.
The words “at any time” and “could have been begotten” are very
significant. The requirement of the section for rebutting the conclusive
presumption is not to show ‘non-access’ exactly ‘at the time when the child was
begotten’, but the requirement is still more onerous and pervasive so much so
that the contending party will have to show non-access ‘at any time’ when the
child ‘could have been begotten’ which means non-access not at any particular
moment but during the whole span of the time when the conception according
to the ordinary course of nature possibly could have taken place.
The party who wants to dislodge the conclusiveness has the burden to show
that not merely did he not have the opportunity to approach his wife but that she
too did not have the opportunity of approaching him during the relevant time.
Normally, the rule of evidence in other instances is that the burden is on the
party who asserts the positive, but in this instance the burden is cast on the
party who pleads the negative.

Problems and inconsistency in section 112

The main problem with the section is that it presumes that sexual
intercourse is an absolute essential for the conception of a child in woman’s
womb. This presumption is expressed in the non-access clause of the section
i.e. the section says if the man could not possibly have had sexual intercourse, it
cannot be his child. Several modern advancements such as deoxyribonucleic
acid (DNA), ribonucleic acid (RNA) tests, sperm bank or cryobank, in vitro
fertilizations, surrogacy etc. have done away with the necessity of a sexual
intercourse i.e. the physical presence of a man near a woman for the conception
of a child.
The average period of pregnancy is 40 weeks or 280 days (this period is called
gestation period), which is only a mean value taken from the first missed menstrual
period. Even where the pregnancy occurs as a result of a single act of intercourse,
the resulting length of pregnancy may vary by a number of days.7 The date of coitus
is not necessarily the same as that of conception, as viable spermatozoa may remain
in the female genital tract for a number of days. The maximum number of
7 P.C Dixit, HWV Cox Medical Jurisprudence & Toxicology, (LexisNexis, New
Delhi,2002).

www.ili.ac.in © The Indian Law Institute

390 Journal of the Indian Law Institute Vol. 54 : 3

days for which they retain their potency is not known, but is probably in excess
of five or six days. Spermatozoa retrieved from the female genital tract up to
two weeks, probably are no longer viable. 8 Another factor is the time of
ovulation, which though normally about the fourteenth day between menstrual
periods, may vary considerably in different women or in the same woman at
different times.9 Under Indian law, as in the UK, there is no legally defined
range of gestation period and each case is argued on its merits. A number of
cases in excess of 300 days are on record, all of which seem reasonably
defined. In Gaskill v. Gaskill10 case, the 331 days was accepted as gestation
period. Similarly in Hadlum v. Hadlum11 and Wood v. Wood,12 it was 349 days,
in Preston Jones v. Preston Jones,13 it was 360 days, in Lockwood v.
Lockwood,14, and it was 355 days and so on.
In this rule, ‘access’ and ‘non-access’ mean the existence or non-existence of
opportunities for sexual intercourse; it does not mean actual cohabitation. The
section has to be applied with reference to the facts and circumstances of each case.
So it differs from one case to another. The word ‘access’ in this section means
‘effective access’. Physical incapacity to procreate, if established, amounts to non-
access within the meaning of this section. The presumption under this section is the
conclusive presumption of law. It can be displaced only by the proof of non-access
between the parties to the marriage when the child could have begotten. One can
prove non-access saying that he had no intercourse with his wife and he is
impotent.
In a case where a widow uses her dead husband’s donated sperm to get
pregnant 280 days after her husband’s death, since this section require ‘continuance
of a valid marriage’ and the child, in this case will unfortunately be born after the
marriage has ceased, it can easily be proved to be illegitimate. Also in a case where
a divorced lady remarried another man then delivered a baby within 280 days of the
dissolution of the first marriage but during the continuance of the second marriage,
the child was declared to be a legitimate child of the second husband.
Now, applying section 112 of the Indian Evidence Act to surrogacy, whereby a
woman agrees to become pregnant and deliver a child for a contracted party as a
gestational carrier to deliver after having been implanted with an embryo. For
example Z is the surrogate mother of A, and X is his mother. Then according to
section 112, A would be legitimate child of Z’s husband who is nowhere involved.
In modern context when there are varied options like surrogacy, sperm banks, in
vitro

8 Ibid.
9 Ibid.
10 1921 PC 425.
11 (1948)2 All ER 412.
12 (1947)2 All ER 95.
13 (1951)1 All ER 124.
14 62 NTS 2d. 910 (1946).

www.ili.ac.in © The Indian Law Institute

2012] Notes and Comments 391

fertilizations and DNA testing, how can section 112 be logical? The problem is
modern scientific developments are shattering these principles. The problem is
that this ancient law as to legitimacy can yield absurd results in modern times.
The gravest problem with the section is it presumes that sexual intercourse is an
absolute essential for the conception of a child in a woman’s womb.
By showing on the preponderance of probabilities, that the husband could
not be the father and since there was no legal bar as to the manner in which that
could be shown provided it could be shown by adducing any sort of admissible
evidence, there was no difficulty for the court to allow the husband to avail
himself of the evidence of blood test for showing that he was not the father of
the child in spite of the fact that the husband admittedly had access to and
sexual intercourse too with the wife at the relevant time. Under Indian law,
however, in a similar situation the husband is debarred from disputing the
legitimacy and paternity of the child in spite of the fact that another man also
had regular sexual intercourse with his wife at the time when the child was
conceived. The husband is debarred under the Indian law in such a situation
from challenging the paternity and legitimacy of the child because he having
had access to his wife at the relevant time has no opportunity to take the plea of
non-access which is the only permissible plea for dislodging the presumption of
legitimacy under section 112, although it is quite possible that the other man
who also had sexual intercourse with the woman was the biological father of
the child.15
Now it may generally be accepted that the existence of the presumption as
to legitimacy is a necessity, but certain important questions are rising which are
as follows:-
1. Can such a conclusive presumption be called a good presumption?
2. Should this presumption be allowed to remain conclusive and can such a
presumption be continued in section 112 of the Act, when conclusive
scientific methods to prove the paternity of the child are available?
3. Whether this presumption should continue considering the extensive
change which society has undergone in terms of accepting new rules of
morality and ethics?
4. The important question raised by Law Commission in its 185 th Report (Part
IIIA),16 whether questions of paternity under section 112 should include cases
arising out of void marriages which are declared void but where, children of
such marriages are made legitimate by any law, and whether a provision
deeming

15 Tushar Roy v. Shukla Roy, 1993 Cri LJ 1659(Cal).

16 Available at: http://lawcommissionofindia.nic.in/reports/185thReport-PartIIIA.pdf ,
last visited on 03.04.2012.
www.ili.ac.in © The Indian Law Institute
392 Journal of the Indian Law Institute Vol. 54 : 3

such marriages also valid for the limited purposes of sec. 112, should be
introduced?

Scientific advancements and presumption of legitimacy

Blood test is an important piece of evidence to determine the paternity of the

child. Though by a blood test it cannot positively establish the paternity of the
child, it can certainly exclude a certain individual as the father of the child.
Therefore, while the negative finding in a blood test is definite, the positive finding
only indicates a possibility. At the beginning of the century scientists established
that human blood had certain characteristics which could be genetically
transmitted. The first recognised system was ABO blood group. The blood group of
a child is determined by the parents’ genetic make- up but the number of
possibilities is such, that it is not possible to prove that certain individual is the
father on the basis of comparing blood groups only. What can be proved is that he
is not the father.
As regards blood groups, the 69 th Law Commission Report gives the
following example. As a scientific principle, a child will inherit the blood group
of one or other of his parents. If O is the blood group of the mother and A is
that of the child, a person with blood group B cannot be the father. But, if the
blood of the male in question is also A, like the child’s, it is not possible to say
that the person is the father. This is the position in Europe and the USA.17
However, medically it is quite possible that the pregnancy may last for
more than 280 days. There may be instances when the husband and wife may
be living together and the wife may have gone astray and conceived the child
through illicit relationship. But in view of section 112 of the Evidence Act, the
legal presumption is in favour of the child being legitimate and the husband has
to bear fatherhood of the child. Due to the aforesaid provision contained in the
Evidence Act, such anomalous situation exists in our country; although science
and technology has advanced so much that it can be accurately ascertained with
the help of DNA testing as to whether parties to dispute have to be given. Now
the DNA fingerprinting test has been much advanced and resorted to by the
courts of law to resolve the dispute of paternity of the child.
The Evidence Act came into field in the year 1872, when there was no
appreciable development or progress in the scientific field, especially to find out
the classification of genes, its effect and co-relation of the same with genetically
identical person. Now the medical field is very much advanced and by having
blood alone, the entire body system could be scanned to detect the defect. DNA
technology comes in handy as a latest tool of forensic science, emanating from
genetic science.

17 Available at: http://lawcommissionofindia.nic.in/51-100/Report69.pdf, last visited

on 03.04.2012.
www.ili.ac.in © The Indian Law Institute
2012] Notes and Comments 393

A sperm bank or cryobank is one kind of facility that collects and stores human
sperm mainly from sperm donors. The sperm bank then supplies the donor sperm
directly to the recipient to enable a woman to perform her own artificial
insemination. Artificial insemination is the process by which sperm is placed into
the reproductive tract of a female for the purpose of impregnating the female by
using means other than sexual intercourse. Now the pregnancy achieved using
donor sperm is no different from a pregnancy achieved by sexual intercourse.
Suppose a husband who has donated his sperm goes away from his wife at
a distance from which sexual intercourse with her is impossible. During this
time if the wife uses his sperm from the bank and conceives a child, according
to this section, the husband may easily prove the child born is illegitimate.
Consider another case where a husband donates his sperm and then
becomes impotent from some disease, if his wife has used the donated sperm
for conceiving a child even after their marriage, the husband may easily prove
that the child is illegitimate.
In surrogacy, a woman agrees to become pregnant and deliver a child for a
contracted party as a gestational carrier to deliver after having been implanted
with an embryo. So here the biological mother and the woman giving birth to
the child through her womb are two different women.
Now, if a Mr. and Mrs. Y for instance contracted a Mrs. Z for delivering
their baby, according to this section the child would be presumed to be a
legitimate child of Mr. Z i.e. Mrs. Z’s husband who may have nothing
whatsoever to do with the transaction. It will be deemed to be his child simply
if and because he had an opportunity to have sexual intercourse with his own
wife. He will have no defence.

Judicial observations on DNA test

There is no provision either in Hindu Marriage Act or in Indian Evidence

Act or in any other law, empowering the court, to issue a direction, upon a party
to matrimonial proceedings or in any other proceedings, to compel them to
submit to blood test. The contending party cannot he permitted to say that he
will rebut the conclusive presumption of law regarding paternity by proving
directly by blood test that the husband is not the biological father of the child
which will virtually be an abrogation of the existing provision of section 112.
In view of the provision section 112 of the Indian Evidence Act, there is no
scope of permitting the husband to avail of blood test for dislodging the
presumption of legitimacy and paternity arising out of this section. 18 Blood group
test to determine
18 Gautam Kundu v. Shaswati Kundu, Criminal Revision No. 800 of 1992, Calcutta High
Court.

www.ili.ac.in © The Indian Law Institute

394 Journal of the Indian Law Institute Vol. 54 : 3

the paternity of a child born during wedlock is not permissible. 19 The Supreme
Court in Gautam Kundu v. State of West Bengal20 laid down the following
guidelines regarding the permissibility of blood tests to prove paternity:
1. That the courts in India cannot order blood tests as a matter of course.
2. Whenever applications made for such prayers in order to have roving
inquiry, the prayer for blood test cannot be entertained.
3. There must be a strong prime facie case in that the husband must establish
non-access in order to dispel the presumption arising under section 112 of
the Evidence Act.
4. The court must carefully examine as to what would be the consequences of
ordering the blood test; whether it would have the effect of branding a
child as a bastard and his mother as an unchaste woman.
5. No one can be compelled to give the sample for analysis.
The apex court in Gautam Kundu 21 further held that the object of section
112 of the Act was to overcome the evil of illegitimacy and save blameless
children from being ‘bastardized’.
The apex court in yet another case of Smt.Kanti Devi v. Poshi Rami22 while
accepting the accuracy of the test held that the result of genuine DNA test is
said to be scientifically true but that is not enough to escape from
conclusiveness of section 112 of the Indian Evidence Act. It was further
observed therein that this may look hard from the point of view of the father,
but in such cases the law leans in favour of the innocent child. Thus, it is
submitted that there is a serious lacuna in the law and DNA evidence should be
made a part of the statute book so as to conclusively and accurately prove the
parentage of the child.
In Sadashiv Mallikarjun Khedarkar v. Nandini Sadasiv Khedarker,23 the
Bombay High Court held that there may be instances where the husband and wife
are living together and the wife may have gone astray and then delivered a child
through illicit connection. But in the view of the legal presumption under section
112 of the Indian Evidence Act,1872 the husband cannot be allowed to prove that
the child is not born to him since husband and wife are living together, even if it is
proved that wife had some illicit relationship with another person. If one goes by
rigor or presumption under section 112 of the Evidence Act no husband can be
permitted to prove that the child born to the wife is not his, if the husband and the
wife are together even if wife is proved to be living in adultery. Bombay High
Court in this case, held that the

19 Tushar Roy v. Shukla Roy, 1993 Cri LJ 1659(Cal).

20 AIR 1993 SC 2295.
21 Ibid.
22 AIR 2001 SC 2226.
23 1995 Cri LJ 4090 (Bom).
www.ili.ac.in © The Indian Law Institute
2012] Notes and Comments 395

court has power to direct blood examination but it should not be done as a
matter of course or to have a roving inquiry, the court even felt that there
should be a suitable amendment by the legislature and after noting that no body
can be compelled to give blood samples, it held that the court can give direction
but cannot compel giving of blood sample.
Again, in Banarsi Dass v. Teeku Datta24 the Supreme Court while reiterating
its view in Kamti Devi25 case held that DNA test is not to be directed as matter of
routine and only in deserving cases such as direction can be given. Though there are
other courts which have deviated from the above observation. In Kanchan Bedi v.
Gurpreet Singh Bedi,26 the Delhi High Court ordered DNA test for determination of
paternity of a child whose father disputed his paternity. In Dwarika Prasad
Satpathy v. Bidyut Prava Dixit,27 the Supreme Court held that the refusal of
paternity (DNA test) would bar a party from challenging the paternity of the child.
In Sunil Eknath Trambake v. Leelavati Sunil Trambake,28 the Bombay High Court
observed that ordering DNA test is the proof of paternity of the child but without
hearing mother and child (through his or her natural guardian) would be violative of
natural justice. The court further held that DNA test to determine paternity should
be ordered in exceptional and deserving cases when such tests are in the interests of
the child. In Bommi and another v. Munirathinam,29 the Madras High Court held
that advancement in science and technology must be used instead of merely relying
upon presumption under section 112 of the Indian Evidence Act, as such
technological advancement was not available at the time of enacting the Evidence
Act.

Settling the provision relating to legitimacy

The, Evidence Act, 1872 and section 112 of the Act at the time of eactment
never contemplated the momentous scientific advancement which has taken place
in the recent past. Moreover, it may also be contested that the section did not
propose to impose fictitious liability on any person, but in fact relieved him of
liability if ‘non access’, the best, the only and the most scientific defence available
at that time, was proved, notwithstanding the fact that it might have led to the
‘bastardization’ of the child. Today, science has taken giant leaps and made
tremendous progress: DNA evidence can now conclusively determine the paternity
of a child.

24 (2005)4 SCC 449.

25 Supra note 22.
26 AIR 2003 Del. 446.
27 AIR 1999 SC 3348.
28 AIR 2006 Bom. 140.
29 2004(5) CTC 182: (2004)3 MLJ 537.
www.ili.ac.in © The Indian Law Institute
396 Journal of the Indian Law Institute Vol. 54 : 3

Again, medical jurisprudence evidences that there is a lot of chance that a

maximum period of pregnancy can be over 280 days. Section 112 does not
apply to all those critical situations where even after 280 days of dissolution of
marriage a mother remaining unmarried can claim legitimacy of the child born
to her. In such situations DNA test is the only method to establish the
legitimacy of the child and solve the dispute with respect the paternity of the
child.30 DNA profiling is fool-proof. It provides absolute certainty rather than a
probable exclusion as in other systems.31
It may further be argued that the social system has undergone an extensive
change since the enactment of the Act. Societal norms have now restructured
themselves. The various advantages of the modern technological and scientific
advancements, especially DNA technology, should be taken into consideration
by the legal system, and suitable modifications and amendments should be
brought about to keep the law attuned to the changing socio-cultural scenario.
In the Indian context, such a change in scientific temper and social outlook is
manifest in the Malimath Committee Report on Reforms of the Criminal
Justice System32, which recommended that section 112 of the Act should
incorporate DNA testing as a scientific means to resolve any dispute pertaining
to paternity.
The genetic science established the belief that the pattern of chemical signals
i.e. the genetic structure which may be discovered with the DNA molecule in the
cells of each individual, is unique and different in every individual. This new
accurate technology should be made available to the court, in order to determine
paternity or maternity disputes, to reach a correct conclusion, regarding succession
cases, maintenance proceedings, matrimonial disputes, etc. In case of disputed
paternity of a child, mere comparison of DNA obtained from the body fluid or body
tissues of the child with his father and mother can offer infallible evidence of
biological parentage. Even DNA testing may be used to rebut the statutory
presumption arising under the Act, if available, or to establish evidence, where no
presumption arises, as in the case, since, marriage is disputed. No other evidence of
corroboration may be required, if the medical examination is conducted properly,
taking proper sampling of body fluids followed by quality forensic examination.
DNA test by the experts may not only reveal the truth but may also remove the
misunderstanding between the husband and wife and help them in reconciliation.
For the propriety and accuracy of the parentage of the minor child, technical and

30 Modi Medical Jurisprudence 540-42. (22nd edn.).

31 C.K. Parik Text book of Medical Jurisprudence, Forensic Medicine and Toxicology
7.9. (CBS Publishers and Distributors, New Delhi 2006).
32 Report of Committee on Reforms of Criminal Justice System (Malimath Committee
Report), March 2003, Government of India, Ministry of Home Affairs.
www.ili.ac.in © The Indian Law Institute
2012] Notes and Comments 397

expert investigation in the form of DNA test is necessary. The allegation of the
husband regarding immorality and promiscuity against the wife can also he
revealed by the DNA test.
DNA tests, however, have little relevance in a proceeding to determining the
legitimacy of a child in India. In the case of Banarsi Dass33, it was held that section
112 of the Evidence Act was enacted at a time when the modern scientific
advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid
(RNA) tests were not even in contemplation of the legislature. The result of a
genuine DNA test is said to be scientifically accurate. But even that is not enough
to escape from the conclusiveness of section 112 of the Evidence Act. For example,
if a husband and wife were living together during the time of conception but the
DNA test revealed that the child was not born to the husband, the conclusiveness in
law would remain irrefutable. This may look hard from the point of view of the
husband who would be compelled to bear the fatherhood of a child of which he may
be innocent. But even in such a case the law leans in favour of the innocent child
from being bastardised if his mother and her spouse were living together during the
time of conception. The court emphasized that DNA test is not to be directed, as a
matter of routine and only in deserving cases could such a direction can be given.
The Law Commission of India in its 185th Report further made certain
observations in this regard and recommended modifying section 112 as
follows: 34
Birth during marriage conclusive proof of legitimacy except in certain
cases 112 The fact that any child was born during the continuance of a
valid marriage between its mother and any man, or within two hundred
and eighty days,
a. after the marriage was declared nullity, the mother remaining unmarried, or
b. after the marriage was avoided by dissolution, the mother remaining
unmarried, shall be conclusive proof that such person is the legitimate child
of that man, unless
(a) it can be shown that the parties to the marriage had no access to each other
at any time when the child could have been begotten; or
(b) it is conclusively established, by tests conducted at the expense of that
man, namely,
(i) medical tests, that, at the relevant time, that man was impotent or sterile,
and is not the father of the child; or
(ii) blood tests conducted with the consent of that man and his wife and in the

33 (2005)4 SCC 449.

34 Available at: http://lawcommissionofindia.nic.in/reports/185thReport-PartIIIA.pdf
last visited on 03.04.2012.
www.ili.ac.in © The Indian Law Institute
398 Journal of the Indian Law Institute Vol. 54 : 3

case of the child, by permission of the Court, that that man is not the father
of the child; or
(iii) DNA genetic printing tests conducted with the consent of that man and in the
case of the child, by permission of the Court, that that man is not the father of
the child; and Provided that the Court is satisfied that the test under sub-clause
(i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific
manner according to accepted procedures, and in the case of each of these sub-
clauses
(i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and
they resulted in an identical verdict that that man is not the father of the
child. Provided further that where that man refuses to undergo the tests
under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the
provisions of clause (a), be deemed to have waived his defence to any
claim of paternity made against him.
Explanation I: For the purpose of sub clause (iii) of clause (b), the words
‘DNA genetic printing tests’ shall mean the tests conducted by way of
samples relatable to the husband and child and the words “DNA” mean
‘Deoxyribo-Nucleic Acid’.
Explanation II: For the purposes of this section, the words ‘valid marriage’
shall mean a void marriage till it is declared nullity or a voidable marriage
till it is avoided by dissolution, where, by any enactment for the time being
in force, it is provided that the children of such marriages which are
declared nullity or avoided by dissolution, shall nevertheless be legitimate.
Now, as per the above discussion it can be easily said that there is an
urgent need to amend section 112 of the Indian Evidence Act by inserting the
DNA or blood test of the husband (after taking consent), child (after getting
permission from the court) and also wife instead of no access criteria. The main
argument is given that the husband has to suffer if he fails to prove ‘no access’
to wife and no court will declare the child illegitimate as such. DNA
technology can conclusively establish the truth in such disputes and therefore
should be resorted to without any hesitation. It is to be borne in mind that when
section 112 was being drafted the scientific advancement of this kind was not
contemplated and therefore this section should be amended.
It is submitted that section 112 does not draw the comparatively weaker
presumption falling within the ambit of the expression ‘shall presume’ as defined in
section 4 of the Evidence Act. In section 4, it is stated that whenever it is directed
that the court shall presume a fact it shall regard such fact as proved unless and
until it is disproved. Section 112 could very well have been so drafted as to provide
that where a person was born during the continuance of a valid marriage between
his mother and any man the court shall presume that he is the legitimate son of that
man. In that case in view of the definition of the expression ‘shall presume” as

www.ili.ac.in © The Indian Law Institute

2012] Notes and Comments 399

given in section 4 it would have been open to the contending party to disprove
the presumption by adducing evidence in disproof of the presumed fact, for
example, by blood test. Had it been a matter falling within the ambit of ‘shall
presume’ the contending party would have been at liberty to rebut the
presumption by evidence, whatever may be the nature of the evidence provided
it is admissible. Instead, section 112 employs the language of a stronger
presumption, the language of ‘conclusive proof ’ leaving only a very narrow
and defined margin about the manner in which that conclusive presumption of
law can be dislodged.
The presumption of law of legitimacy of a child will not be lightly rebutted.
It will not be allowed to be broken or shaken by a mere balance of probability.
The evidence of non-access for the purpose of rebutting it must be strong,
distinct, satisfactory and conclusive. The standard of proof in this regard is
similar to the standard of proof of guilt in a criminal case. The proof of
legitimacy or illegitimacy can now be established by preponderance of
probabilities rather than beyond all reasonable doubt. An adverse inference
should be drawn if the party refuses to have a blood test or DNA test.

Conclusion

It is a well accepted fact that the law has to grow in order to satisfy the
need of the fast changing society and keep abreast with the scientific
developments taking place. Accordingly, section 112 of the Indian Evidence act
should be amended in light of present developments in science and technology.
The time has now come when the law needs to make a specific distinction
between child born as a result of sexual intercourse and child born by other
medical procedures. It should be remembered that the law directly deals with
basic complex human problems, which are not of mathematical precision, and
the fate of every case depends upon its own factual matrix. Thus, scientific
evidences like DNA testing are one of the means to achieve the main goal i.e.
the “truth” and it is not an end in itself. However, administration of justice
system needs to be modified by remaining in the existing framework to the
effect that one can effectively utilise the benefit of modern scientific and
technological advancement. There must be a unique balance between scientific
evidence and human evidence. Therefore, existing value-based administration
of justice cannot be done away with and as such, a susceptible balance has to be
struck between the modern system based on scientific and technological
knowledge and the existing value-based system.
Caesar Roy*

* Assistant Professor in law, Midnapore Law College, Midnapore, West Bengal. Email
– caesarroy123@gmail.com
www.ili.ac.in © The Indian Law Institute