S ECTION 112.

—Birthduring marriage, conclusive proof of

legitimacy.—The
continuance of a valid fact that any person was born during the
within two hundred marriagebetween his mother and any man, or
remaining unmarried, and eighty days after its dissolution,the mother
son of that man, unlessshall be conclusiveproof that he is the legitimate
had no access to each it can be shown that the parties to the marriage
other at any time when he could
have been
COMMENTS
Presumption about
but paternity is a matter of legitimacy.-—Maternity admits of positive proof,
inferences. The connection of a child with
is secret but it may be ascertainedby the subsisting his father
constituted relation between him and facts.It is a legally
known to everybody that maternity is the mother of child.To be clear it is
a fact and paternity is a surmise. It can
said with certainty as to which woman be
gave birth to a particularindividual
but it is impossible to say as to who was that
the child. Section 112lays down the rule forman from whom the motherbegot
the proof of the paternityof an
individual. This section lays down that if child is born
of valid marriage between the mother and a man or within during the continuance
280days after the
dissolution of the marriage, the mother remainingunmarried it shall be
presumed that the child is a legitimate son of that man unless and until it is
shown that the parties to the.marriage had no accessto each other any time
when the child would have been begotten. Let us suppose that A (a man)
marries W (a woman) on the 3rd March, 1930and the wedlockcontinuesup to
3rd January, 1935.A child is born to the woman on the 2nd June, 1932.Now it
shall be presumed that this child is legitimate son of A. Anybody who wants to
prove that he is not a son of A, has to prove that A and W could not have met
as husband and wife within ten months from the date of the child.
Again suppose A and W marry each other in the year 1930and their
marriage is dissolved on the 1st January, 1935.The woman does not marry after
the dissolution of the marriage. A son is born to her on the 7th September, 1935.
Now it is well within 280 days and it shall be presumed that the child is a
legitimate son of A and if A says that he is not the father of the child he must
prove that he and W had no access to each other within 280 days of the date of
the birth. Strictly speaking there are two presumptions under this section, one
 Acr
518

and the other irrebuttable. First there is a presumption to start With

rebuttable born during wedlock ; in other Wordsthere
of the child
in favout of legitimacy
the husband had intercourse, with the wife at the timethe
that
is pmsunhption been conceived. But this is rebuttable presumption and
child must haveadduced to show that there was in fact no access,that is,
evidencemay be second presumption no
is this ; if sexual intercourseis
The
sexual intercourse. permit an enquiry whether the husband or someOther
proved the law will not father of the child, the presumption to be drawn
man svas more likely to be the
here becomes irrebultable one.
plaintiff and the defendant, were
In ShyatnLal v. SanjeevKumar,I the of her valid marriage
born to one Smt. Durgi during continuance on record that the
with the
deceased,Balak Ram. There was no evidence was held that theredeceasedat
any point of time did not have access to her. ItJustice Dalveer was strong
presumption about the legitimacy of children. Bhandariof the
Supreme Court held—
"'On the proof of legitimacy of marriage, there is strong presumption about
the legitimacy of marriage born out of that wedlock. The presumption can only
be rebutted by a strong, clear, satisfying and conclusive evidence.The
presumption cannot be displaced by mere balance of probabilities or any
"2
circumstance creating doubt.
Presumption as to valid marriage—factumof marriage must be
proved.—ln Raghunath Parmeshwar Pandit Rao Mali v. Eknath Gajanan
Kulkarni,3the Supreme Court laid down a very important preposition that in
certain circumstances the valid marriage can be presumed. The Supreme Court
held that where there was evidence on record to prove. staying togetheras
husband and wife for continuous and long period, there is presumption of valid
marriage. More so if the same fact is admitted by the adversary. Accordingto
Supreme Court, the finding of the High Court that valid marriage can be
presumed, only when factum of valid marriage is proved is not proper. Finding
of High Court was arrived at without considering the admission by adversarye
Son begotten by wife from husband from such marriage are legal heirs over
property of husband and would succeed such property.
But in P. V, Shahu v. Maiakutty,4 the Kerala High Court appears to give
opinion that Section 112 of Evidence Act is applicable only if there is valid
marriage. In this case there was no marriage initially. There cannot be any
scope of presumption of legitimacy of child. The presumption applied only
when the child was born during the continuation of valid marriage or within
280 days after dissolution of marriage and the mother remaining unmarried.If
the presumption is stretehed to other cases anomaly may occur. Suppose the
child was born immediately within the few days of marriage still the
presumption will apply, then no accesshas to be proved as the time before
marriage took place. The question of non-access relates to the time after
1. AIR 2009 SC 3115.
2. Ibid, at p. 3121.
3. AIR 1996 SC1290.
4. AIR 1998 Ker. 86.
 s. 112) OF THE BURDEN
marriage and not before the OF PROOF
husband had access to the marriage. In this case, the
wife before marriage. case of wife is that the
The above fact was held not be
presumption as to
marriage.—A pertinent dissolution of marriage or presumption
dissolution of marriage can
question for consider.ation as to
under Section 112is whether
child is born within 280 daysbe presumed from circumstances of case. Because
of dissolution of if a
child of father, where marriage marriage, will be presumed to be
with child's mother has
In M. Govind Raju v. been dissolved.
K. Muniswami
Go€lnd Raju was born to Gounderand others,l the appellant M.
Poppummal from the loins
appellant has been denied his of Muniswami Gounder. The
by his father on the sole ground share in the joint Hindu family property owned
that when begotten no valid
marriage subsisted
The trial Court decided in
favour of appellant but High Court branded
him as illegitimate child and hence
held not to be entitled to inherit the
property in joint Hindu family.
The Supreme Court held that,
woman
with another man, child born from that deserting her husband and living
been acknowledged by relatives will beielationship, where the paternity has
legitimate child. According to the
opinion expressed by Supreme Court in instant
case, a Sudra woman (woman of
lower caste) abandoning her husband and not brought
husband as wife, back by her erstwhile
would be deemed to be divorced according to Hindu Law. Here
the woman had deserted her earlier husband, the husband did not bring her
back. The woman was living with another person for long time. In these
circumstances, it will be presumed that the marriage between the woman and
her earlier husband had been dissolved because taking caste into consideration
it was customary in Sudras, that each spouse is entitled to rearrange his or her
life in marriage with other marrying partner. The child will be deemed to be
legitimate child. The decision of High Court was not proper.
In S. Ajaramma Bibi alias S. Hajaram Bibi and others v. S. Khursheed
Begumand others,2 the Supreme Court said that continuous cohabitation of
woman with a man gives rise to presumption of legitimacyof children born
during period of continuous cohabitation. Appellants are ligitimate son.
Access.-—-The word "access" in this section means actual sexual
intercourse. 'Access' in this case means effective access.The presumption which
Section 112 contemplates is conclusive presumption of law which can be
displaced only by proof of the particular fact mentioned in this section, namely
non-access between parties to the marriage at a time when according to the
the father of the child.
ordinary courseof nature the husband could have been
non-existenceof opportunities for
Accessand non-access connote, existence or all cases to prove that the
marital intercourse. 3 If it is not necessaryin
AIR 1997 SC 10.
AIR 1996SC 1663.
Vankta Narayan, AIR 1954SC 156; Karapaya Sevai v. Mayanand, AIR 1934
Venketeswarlu v.
PC 49.
 520 EVIDENCE ACT Is. •112v
man and the woman could not be together as for example one was at Calcutta
and other at Madras. If it is establishedthat the husband was physically
incapable of procreating it will mean non-access within the meaning of
this section. If it is proved that the man is impotent the non-accesswill be
proved. But to stamp a child born to a wife in lawful wedlock with
illegitimacy on the ground of incapacity of procreation, it will be necessaryto
prove : —
(1) the precise age of the husband at the date of conception ;
(2) to negative the possibilityof premature vitality at that age owing to
precocious development.
"In•this section as it has been said above it should be remembered that the
word 'access' and 'non-access' mean the access and non-access of sexual
intercourse. The wife of P left him and went to live with her father. Shortly
after her father dying, she developed a connection with one H with whom she
went to live. P took a house opposite to the one where they resided and had
frequent intercoursewith her. She had two children during this time. It was
held that they must be declaredlegitimate."'Access' if it is such accessas
affords an opportunity of sexual intercourse, and where the fact of such access

between a husband and a wife within a period capable of raising the legal
inference as to the legitimacy of an after-born child is not disputed,
probabilities can have no weight and a case can never be sent to a jury. There is
nothing against the evidence Qf access except evidence of the adulterous
intercourse of the wife with H, which does not affect the legal inference ; for if
it were proved that she slept every night with her paramour from the period of
her separation from her husband it must still declare the child to be
legitimate. The interests of public depend upon strict adherence to the rule of
law. From proof of 'access' as this word is used in this section the presumption of

sexual intercourse is very strong. Proof perse that the woman was living with
the paramour is no evidence of non-access by the husband. The fact that the
husband has been living with another woman for a number of years does not
amount to a clear proof of non-access. l B was married in 1929 and became
lunatic in 1933. He was confined in a lunatic asylum until his death. His wife
who lived 25 miles away occasionallyvisited her husband but the keepersof
the asylum had strict orders not to allow them at any time to remain together;
He was allowed freedom of the grounds and the porter sometimes being absent
it was possible for a person to enter without being seen. In March,1935she
visited the asylum remaining alone for sometime with her husband and a child
was born in December, 1935. There were rumours at that time that Mrs. B was
•living in adultery with one D. But the court held that the child was
legitimate. That husband and wife slept together affords a strong and
irresistible inference of sexual intercourse. But in absence of such irresistible
inference the fact of sexual intercourse must be tried like any other fact,to
which no direct evidence is applicable.Provided that husband and wife were
living in the same town and so had opportunities of meetingt and therefore,

1. Reghovan Pillaiv. Gauri Kuttiamma, AIR 1960 Ker 119.

s. 1121 OF THE BURDEN OF PROOF 521
intercourse, would in absence of any proof
raising a pregut@tion to the
contrary,be sufficient to establish legitimacyof the
prove that the husband and wife had been in the child born of the wife. To
same room or the same house
togetherwould be much strong evidence of the fact.
In DeveshPratap Singh v. Smt. Sunita Singh,l
the husband admitted the
consummationof marriage after it took place on 29-11-1985 and also admitted
the access to each other between 29-11-1985to ±1-1-1986.The child born on 31-
10_1986could have been conceived as husband and
wife had access to each other
between the above period. The husband cannot derive much help from the
admission made by wife during cross-examinationwhere the husband visited
her while she was living with her parent's house between 8-1-1986to 12-1-
1986,she was in menstrual period. Merely because the wife states that she was
in menstrual period, at the time of visit of her husband it cannot be conclusively
held that she could not have conceivedearlier to the above period as a result of
her access to the husband before and after the same period.
Further in her statement she categoritally stated in her examination-in-
chief that when her husband came to her parent's house in January, 1986,she
has already become pregnant the version of wife appears to be material and
truthful. Thus in view of the medical opinion, the plea of the husband based on
the alleged admission of the wife in cross-examinationabout her menstrual
period does not lead to a rebuttal presumption that wife had conceived as result
of any illicit sexual (relation) intercourse with any person outside the wedlock.
The presumptiqn in Section 112 of Evidence Act thus does not stand rebutted
view of the admitted accessbetween the husband and the wife during which
she could have conceivedand delivered normal child.
Relevancy or admissibility of blood test under Section 112.---In
the above case the husband sought the direction of the Court to blood test. Here
the consummationof marriage and accessbetween husband and wife was
admitted. Medical opinion supported wife. But wife refused to blood test on the
ground that there is no one in her family to take her to Delhi for blood test. It
was held by Madhya Pradesh High Court that no adverse inference could be
drawn against wife in refusing to submit herself to blood test.
Relevancy or admissibility of D.N.A. or R.N.A. Test.—--lnGoutam
2 the R-2 (wife) was married to the appellant
Kunduv. State of West Bengal,
(husband) on 16th January, 1990.They lived together for some time. R-2 went to
her parents to prepare for her higher secondary examination which commenced
on 5.4.1990and continued upto 10.5.1990.In the month of April, 1990 R-2
conceived. The appellant and his family members wanted her to udergo
abortion but she refused. She came back. A female child was born to her on
3.1.1991.She was subjected to cruelty during her stay in matrimonial home. On
the petition filed by her under Section 125,Cr. P.C., the Magistrate awarded
her a sum of Rs. 300 per month and Rs. 200 per month to the child. The
appellant filed a revision petition. During the pendency of the petition, he
filed a case for the blood group test of the child to prove that he was not the
1. AIR 1999 MP 174.
2. AIR 1993 SC 2295 1993
 522 EVIDENCE ACT

father of the child. His applicationwas dismissed on two ground

were other methods in the EvidenceAct to disprove the paternity, ere
settled law that medical test cannot be conclusive of paternity. The High(ii) i
dismissed the revision petition against this order and held—Where C t is
Ourt
during
continuance of valid marriage, a child is born that is a conclusive proofabthe
the legitimacy.This section would constitute a stumbling block in the
the petitionergetting his paternity disproved by blood group test. The out
law permitting blood test for determining the paternity of legitimacy
be applied in view of Section 112 of the Evidence Act. Section 112 could
read
disproving the presumption of legitimacy and paternity. The non-accessfor
Supreme Court
Section112requires the party disputing the paternity to prove
in order to dispel the presumption "Access" and "non-access" mean the non-acc
. ess
or non-existence of opportunities for sexual intercourse; it does
cohabitation.The effect of this section is a presumption and not mean actual
though a rebuttable one. Conclusive proof means as laid a very strong
down under one
section4 of
(1) The Courts in India cannot
order blood test as a matter
of course.
(2) Whereverapplicationsare made for such
roving inquiry, the prayer for blood test prayers in order to
cannot be entertained. have
(3) There must be a strong
prima facie case is that
establish non-accessorder to dispel the husband
the presumption must
under Section 112of
the
(4) The Court must carefully
of ordering the blood test; examine as to what would be
whether it will have the consequence
as a bastard and the
mother as an unchaste
the effect of branding a child
woman.
(5) No one can be compelled
to give sample for blood
In 1<amtiDevi v. Poshi Ram,l analysis.
'Evidence Act was enacted the Supreme Court held
that Section 112of
with Dioxy Nucleic Acid at the time when modern scientific
even in contemplation (DNA) as well as Ribo Nucleic Acid (RNA) advancement
of
said to be scientifically the Legislature. The result of a genuine was not
accurate but even that is DNA Testis
conclusiveness of Section 112 of the not enough to escape from the
together during the time Act e.g. if the husband and wife
not born to the husband of conception but DNA Test reveals were living
the conclusivenessin that the child was
This may 100khard from law
would remain
bear the fatherhood of point of view of husband who would unrebuttable.
the child of which he be
cases law leans in favour may be innocent. Butcompelledto
and spouse living of innocent child even in such
together during the time from being basterised if his mother
regarding the degree of conception. Hence the question
be
of proof of non-access
answered in light of for rebutting the conclusiveness must
what is meant by or non-access as delineated
1. AIR 2001SC 2226.
 s. 112) OF ntJRDFN OF PROOF 523
DNA test prevails over presumption of conclusiveness proof
under Section 112.-—ln Nandlal Wasudeo Badwaik v, Lata Nandlat
Baatoaik,lRel filed an application for maintenanceunder Section 125 of Cr.
p.c. for herself and R-2 her daughter against her husband. The husband denied
accessto the wife and alleged that RO was not his daughter. The Magistrate
granted the maintenance to R-1 and R-2 both. The revision petition against the
order and also a petition under Section482 failed.The appellant filed a SLP
his application for DNA Test had been refused. On the direction of the
supreme Court, DNA Test was held and it was reported that the appellant was
not the biological father of the child. On the request of respondents for retest of
DNA and accordingly direction of the Supreme Court, DNA Test was held
again in another Central Forensic Science Laboratory, Ministry of Home
Affairs,Governmentof India at Hyderabad. In this report also, ti.e opinion
was that the appellant was not the biologicalfather of R-2. The Supreme
Court allowed the appeal, set aside the impugned judgment so far as it directed
payment to R-2 but the payment already made not to be recovered. Regarding
the contention that the husband had failed to prove no access to his wife, was
conclusiveproof of the legitimate daughter of the appellant and DNA Test
would not rebut conclusive presumption under Section 112 of Evidence Act, the
Court held—
Section 112 of the EvidenceAct was enacted at a time when the modern
advancement
scientific and DNA testwere not even in contemplation of the
Legislature. The result of DNA test is said to be scientificallyaccurate.
Although Section 112 raises a presumption of conclusive proof on satisfaction of
the conditions enumerated therein but the same is rebuttable. The presumption
may afford legitimate means of arriving at an affirmativelegal conclusion.
While the truth or fact is known, in our opinion, there is no need or room for any
presumption..Wherethere is evidence to the contrary, the presumption is
rebuttable and must yield to proof. Interest of justice is best served by
ascertainingthe truth and the Court should be furnishedwith the best
availablescience and may not be left to bank upon presumptions, unless science
has no answer to the facts in issue. In our opinion,when there is a conflict
betweena conclusiveproof envisaged under law and a proof based on scientific
advancementaccepted by the world communityto be correct, the latter must
prevail over the former.
We must understand the distinctionbetween a legal fiction and the
presumption of a fact. Legal fiction assumes existence of a fact which may not
really exist. However presumption of a fact depends on satisfaction of certain
circumstances.Those circumstanceslogicallywould lead to the fact sought to be
presumed. Section 112 of the Evidence Act does not create a legal fiction but
provides for presumption.
The husband's plea that he had no accessto the wife when the child was
begottenstands proved by the DNA test report and in the face of it, we cannot
compel the appellant to bear the fatherhood of a child, when the scientific
reportsprove to the contrary. We are consciousthat an innocent child may not
1. AIR 2014 SC 932.
 F.VIDENCE ACT

be bastardized as the inartiage between her mother and fa

at the time of birth, but in view of the DNA ther Was
reports and what
subsistin
s denying g
"Truth 'nuist tritunph" is the hallmark Ofjustice.l the truth
Refusal of wife to comply with the order of court
Test. —In Roy v. Romi,roto Roy,2 the husband filed for DNA
petition alleging adulterous life style of his wife as she had a
was leading a fast life having extra-marital relationship. Thegone astrayand
wife deniedth
allegation. The husband's application to determine the paternity
by holding DNA Test was rejected by the Family Court. His of the child
allowed by the High Court. On appeal, the Supreme Court upheld applicationWas
the orderof
It is permissible for a Court to direct the holding of DNA
determine the paternity of the child. There can be no dispute thatTestto
direction to hold such a test can be avoided, it should be avoided. The if the
reasonis
that the legitimacy of the child should not be put to peril. It is just and
to record a caveat giving the appellant-wifeliberty to complywith proper
disregard the order passed by the High Court. If she acceptsthe direction
issued by the High Court, the DNA Test will determine conclusivelythe
veracity of accusation levelled by the respondent-husbandagainsther.On
declining to comply with the direction, the allegation would be determinedby
the concerned Court by drawing a presumption of the nature contemplated in
Section 114 of the Evidence Act, especially in terms of illustration (h) thereof.
By adopting this course, the issue of infidelityalone would be determined
without expressly disturbing the presumption contemplated under Section112of
the Evidence Act.3