WHEN THE QUESTION IS ABOUT THE LEGITIMACY OF A CHILD?

“There cannot be an illegitimate child, there can only be illegitimate parents”

                                                       - George Bernard Shaw

Ques.1. WHEN THE QUESTION IS ABOUT THE LEGITIMACY OF A CHILD?

Section 112 of Indian Evidence Act, 1872 defines:-

If the child is born 

• During the continuance of a valid marriage between his mother and the man 

                                         OR

• Within 280 days after dissolution of marriage and mother remaining unmarried.

It shall be considered as conclusive proof of legitimacy of he being the father.

Exception

 If it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Ques.2. What are the essential ingredient of section 112 of Indian evidence act? 

• The child should have been born during the continuance of a valid marriage, or if the marriage was dissolved within 280 days after its dissolution, the mother remaining unmarried.

• The parties to the marriage should have had access to each other at any time when the child could have been begotten.

In SPS Balasubramanayam vs Surattoyan, 13 oct.,1993, the court held that a marriage could be presumed from the long marital relations between a man and woman within the meaning for giving rise to this presumption of conclusive proof.

Ques.3. What is Conclusive Proof and Conclusive evidence?

The presumption raised under section 112 of the Indian Evidence Act is the conclusive proof under section 4 of the Indian Evidence act. When a fact is declared conclusive proof of another, the court shall not allow further evidence to disprove the fact. This case generally occurs when it is in the interest of society or against the government’s policy, hence, there is no difference between `conclusive evidence` and `conclusive proof`.

Ques.4. Is a DNA test allowed under section 112 of the Indian Evidence Act?

Generally, a DNA test is not acceptable by the court in India as it results in the violation of the right to privacy (Article 12).

The Supreme Court in Goutam Kundu vs State of West Bengal, 14 May, 1993 has laid down the following rules for blood test to prove paternity:

1. The courts in India cannot order for the blood test as a matter of course.

2. The application for blood tests cannot be taken into consideration.

3. There must be a strong prima facie case that the husband should establish non-access to eliminate the presumption under section 112 of the Indian Evidence Act.

4. The court must examine the consequence of ordering a blood test, whether it will have the effect of identify the child as a illegitimate and the mother as unclean.

5. No one can be compelled to give blood samples for analysis.

Ques.5. Refusal of wife to comply with a DNA test.

In Dipanwita Roy vs Ronobroto Roy, 15 oct,2014, the Supreme Court held that it would not be incorrect to issue direction to the wife to undergo a DNA test to determine the parentage regarding the case challenging her infidelity. And if the wife refuses to undergo the test of the child to determine parentage, an adverse presumption can be drawn against the wife.