Presumption of Legitimacy of Child under the Indian Evidence Act, 1872

Presumption of Legitimacy of Child under the Indian Evidence Act, 1872

Maternity is always certain. Paternity is a matter of inferences.[1]

Introduction

The chastity of women is considered to be one of the purest things under the Indian society. Section 112 of the Indian Evidence Act, 1872, was designed in order to protect the chastity of women and interest of the born child in dispute. In the following article, we shall be discussing about the presumption under the aforementioned section, along with the different presumptions present under the Indian Evidence Act.

On the other hand, law is a subject which is highly dynamic in nature and development in the field of science plays a very significant role in it. The development of blood tests, DNA tests and RNA tests, in order to inquire about the paternity of the child, has proved to be a significant challenge for the presumption under section 112. In the following article, we shall also be discussing about the views of the Indian Courts, in respect towards the same.

Section 112 of Indian Evidence Act, 1872

The Indian Evidence Act, 1872 being a procedural law, sometimes makes it mandatory for the courts to presume certain things, either in favour of the accused or in the favour of the victim during a trial or a civil suit. One of such presumption is also provided under Section 112. It states that if any person is born –

• During the continuance of a valid marriage between his mother and any man; or
• Within 280 days after the dissolution of marriage, apart from the condition that mother remains unmarried,
• it shall be considered as a conclusive proof that the person born is the legitimate child of that man, unless it is proved that the parties (mother and the man) had no access to each other at any time when he could have been begotten.

The above section is based upon the principle that when a particular relationship, such as marriage, is shown to exist, then its continuance must prima facie be presumed.[2] Now, if we refer to Section 4 of the Indian Evidence Act, 1872, that if a fact is declared by the act to be regarded as a conclusive proof of another, the court shall, on proof of one fact, regard the other as proved and not allow evidence to be given for the purpose of disproving it.[3]

Thus, inferring from what discussed above, if it is proved that a person is born during the continuance of a valid marriage or within 280 days after dissolution of marriage (if the mother remains unmarried), it will be a conclusive prove that the person born is the legitimate child of the man to whom his mother is married.

Types of Presumptions under Indian Evidence Act, 1872

According to Black’s Law Dictionary, the term ‘presumption’ means a legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts.[4] The term presumption has been derived from the Latin word ‘praesumere’ which means to take before or to take for granted.[5] As discussed in the case of Izhar Ahmed Khan v. Union of India[6], 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. Presumption comes into play where certain facts may be presumed to exist even in the absence of complete proof.

Presumption can be broadly classified into two parts i.e.

• Presumption of Facts – Under this, the courts presume certain facts even in the absence of complete proof. It is also known as material presumption. Presumptions of fact or natural presumptions are inferences which are naturally and logically drawn from experience and observation of the course of nature, the constitution of human mind, the springs of human action, the usages and habits of society.[7]
• Presumption of Law – This category can be further divided into two parts i.e. rebuttable presumption of law and irrebuttable presumption of law. Rebuttable presumption of law is one which shall stand good only until it is disproved, however, irrebuttable presumption of law, are of conclusive nature. Sections 75 to 85, 89 and 105 of the Indian Evidence Act, 1872 are examples of former, whereas sections 41, 112 and 113 of the act are examples of the latter.

Apart from this, as per the Evidence Act, the presumptions have been classified under section 4 which are – May Presume, Shall Presume and Conclusive Proof.

• May Presume – As the term suggests, it is not binding for the court to draw a presumption. It is upon the discretion of the court whether to consider it as proved or to call for confirmation through evidence. If the term may presume is used, the court may presume a fact, it will regard such fact as proved, unless and until it is disproved or may call for proof of it.[8]
• Shall Presume – Under this, no discretion is left with the court and it becomes a legislative command to make the presumption. The presumption, however, is rebuttable[9] but the same shall be considered as proved until and unless it is disproved by any other evidence.[10] The question of calling upon the parties to formally prove a fact does not arise.[11]
• Conclusive Proof – The term ‘conclusive proof’ and ‘conclusive evidence’ are same and the aim of both the expressions is to give a finality to the establishment of the existence of a fact.[12] Thus, when a fact is declared to be a conclusive proof of another, the court cannot allow evidence to disprove it (as discussed above also).

Relevant Case Laws

• Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana[13] – In this present case, the suit was initiated by infant plaintiff (represented by his maternal uncle as next friend) for recovery of possession on partition, of a half share in the properties described in the schedule to the plaint on the allegation that they were the joint properties of himself and his father. However, the father denied that the plaintiff is his child and charged his second wife for misconduct, which was the only issue before the court.

The court stated that the term access and non – access as used in the section means existence and non – existence of opportunities for marital intercourse and the English Common Law doctrine according to which neither a husband nor a wife is permitted to give evidence of non – access after marriage to bastardise a child born in lawful wedlock, does not apply in India (even abrogated in England by section 7 of The Matrimonial Clauses Act, 1950).

The court held that the husband failed in proving that there was no opportunity for intercourse between him and wife, thus, the plaintiff was the legitimate child of the husband.

• Narendrea Nath Pahari v. Ram Gobind Pahari[14] – In this case, the appellant had brought the suit to obtain the administration to the estate of her deceased husband as mother and guardian of a minor who was stated to be the son of the deceased Upendra Nath. The petition was opposed by the reversioners of the deceased and the only issue before the court was whether the boy was legitimate child of the deceased.

It was proved that the child was born within 280 days after the death of the deceased, the wife of the deceased being her mother and the respondents had failed to prove the non – access of the deceased with her wife. Thus, the child was declared to be legitimate child of the deceased.

• Sethu v. Palani[15] – In this case, the mother of the plaintiff Pechiammal had firstly married to Subramania Thevan, in 1903 of September or October, who divorced her in 1904 of May or June. After this, she married to another man named Thirumeni Thevan, in 1904 of June or July and the plaintiff was born in September, 1904. The plaintiff had sued Thirumeni for partition of his one – third share in the property. The question before the court was regarding the construction of Section 112 of the Indian Evidence Act.

The court observed that as per Section 112, the plaintiff is the legitimate child of Thirumeni until and unless it is proved by him that he had no access to Pechiammal, at any time he could have been begotten. The main argument was that a child conceived during adulterous intercourse cannot be considered to be a legitimate one and the English Law, where as a concession, a child conceived before marriage as the result of a non – adulterous connexion was regarded as legitimate if born after the marriage of its parents, this law is not applicable in India.

• Tushar Roy v. Sukla Roy[16] – In this case, the question before the court was as to whether blood test is permissible in law for determining the paternity of a child during the wedlock of the husband and the wife. The court had made certain observations out of which these 3 were the most important ones which are as follows – Firstly, The conclusive presumption under Section 112 is rather based on a sound policy of affording protection to the sanctity and stability of family relationship so that for every trifling suspicion or for oblique purposes the question of legitimacy a child born or conceived in the wedlock does not become a handy target of scandalisation and indecent investigation.

The court further observed that the interpretation of Section 112 has a sound logic backed by a sound ethos which is still valid in Indian conditions.

And, lastly, a conclusive presumption of legitimacy attracted by Section 112 of the Indian Evidence Act can be rebutted only by showing that the husband and the wife had no access to each other at any time when the child could have begotten. 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 to show ‘non – access’ ‘at any time when the child’ could have 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 court finally held that demand for blood test to determine paternity is not supported as neither is it supported by language of Section 112 nor it is in welfare of the children in disputed cases.  

Legitimacy of Child under Muslim Personal Law

The presumption regarding legitimacy of a child born under Muslim Personal Law is completely different from that given under Indian Evidence Act. The rules regarding legitimacy are as follows[17] –

• Any child born within six months of marriage is presumed to be illegitimate, until and unless the contrary is claimed by the husband;
• Any child born after six months of marriage is presumed to be legitimate, until and unless the husband claims the contrary;

In the above cases, one essential condition is that the marriage between the man and the woman has to be valid (Sahih) or irregular (fasid), otherwise, in case of void marriages, even if the child is born within six months of marriage, he or she will be considered as illegitimate.

However, in the case of dissolution of marriage, different school of thoughts under Muslim Law have certified different time periods, under which if a child is born, he or she will be considered as legitimate. For instance[18] –

• Within 10 lunar months – under Shia Law
• Within 2 lunar years – under Hanafi Law
• Within 4 lunar years – under Shafei or Maliki Law.

And, as stated in the case of Mohd. Allahabad Khan v. Md. Ismail[19], that under Mohammaden law the legitimacy has to be considered with reference to the date of conception.

DNA Test and Presumption under Section 112 of Indian Evidence Act

In the above cases, it is seen that the presumption under section 112 provides conclusive proof until and unless it is proved that the husband had no access to his wife. But law being dynamic in nature, cannot be studied in absence of development of other fields. With the development in the field of medical sciences, different evidences can be collected for facilitating justice. One of such recent development is DNA (deoxyribonucleic acid) Test. In respect to this, the courts had the following views –

• Kamti Devi v. Poshi Ram[20] – In this case, fifteen years after the marriage, the appellant had given birth to a child, however, the respondent had filed a civil suit for declaration that he was not the father of the child as he had no access to the appellant during the period when the child could have been begotten. The issue before the court was whether the burden of proof on the plaintiff to prove non – access to his wife was as heavy as the burden of a prosecution in a criminal case.

The Supreme Court held that the word access in Section 112 of Evidence Act connotes only the existence of opportunity for marital intercourse. The court made two important observations which are as follows –

Firstly, that even the result of a genuine DNA Test is not enough to escape the conclusiveness under Section 112, in order to prevent the child from being bastardised, if his mother and her spouse were living together during the time of conception. And secondly, the standard of proof of prosecution to prove the guilt beyond any reasonable doubt belongs to criminal jurisprudence whereas the test of preponderance of probabilities belongs to civil cases……… but at the same time the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatized. 

• Banarsi Dass v. Teeku Dutta[21] – In this case, the main issue before the court was whether a direction for DNA test can be given in a proceeding for issuance of succession certificate under the Succession Act, 1925. The Supreme Court held that DNA test cannot be directed as a matter of routine except in deserving cases, however, this case was not one of them. The case stating the observation of the Kamti Devi case observed that it must be remembered that Section 112 of Evidence Act was enacted at a time when the modern scientific advancements with DNA and RNA tests were not even in contemplation with the Legislature.
• Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik[22] – In this case, the wife had claimed maintenance under section 125 of Criminal Procedure Code, 1973 for herself and her daughter, however, the husband denied that the daughter was her own child. The maintenance was granted by Magistrate and in lieu of his order, the Special Leave Petition in the instant case was filed.

The court held that the daughter was not the legitimate child of the husband on the basis of the DNA test report. The court observed that the interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. When there is a conflict between a ‘conclusive proof’ envisaged under law based on a presumption and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

• Goutam Kundu v. State of West Bengal[23] – In this case, the wife after living sometime with the husband went to reside with her parents in order to prepare for the Higher Secondary Examination. Later on, she conceived, however, she was meted out cruel treatment by her husband and his family members because of her pregnancy. After a female child was born, she filed a petition under Section 125 of Code of Criminal Procedure, 1973 for maintenance both for herself and the child. After the maintenance was allowed, the husband challenged the paternity of the child born.

While deciding this case, the Supreme Court made the following observations –

1. a) The Indian courts cannot order of blood test as a matter of course;
2. b) Applications made for roving inquiry, the blood test cannot be ordered;
3. c) A strong prima – facie case of non – access has to be established by the husband, in order to dispel the presumption under Section 112 of Indian Evidence Act;
4. d) The consequence of ordering the blood test must be carefully examined by the court, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman;
5. e) No person can be compelled to give sample of blood for analysis.

Conclusion

As per the Sociological School of Jurisprudence, the law should be in accordance with the society which certainly includes the changes that society goes through. The Indian Evidence Act of 1872 was enacted and enforced at a time when medical technologies were not so advanced and there was no such method to check the paternity of the child born. Thus, in order to prevent the interest of the child, the Legislature had empowered the Judiciary to make such an irrebuttable presumption.

However, with the development in the medical field, it would have been a failure in the administration of justice to not include the DNA test technology for determining the paternity of the child. But the view of the Supreme Court as stated above is also correct that if DNA testing is allowed on a regular basis, then every dispute in the family would certainly lead to challenging of the paternity of the child which will not only be wastage of court’s time but also disturb the order in the society.

Thus, there is a need to amend the section in accordance with the prevailing morals in the society, especially, when the court has struck down Section 497 of Indian Penal Code as unconstitutional and live – in relationship has been legalized.

[1] Caesar Roy, Presumption as to Legitimacy in Section 112 of Indian Evidence Act needs to be Amended, 382, 383, 54 JILI (2012).

[2] Bhima v. Dhulappa, (1904) 7 Bom LR 95.

[3] Ratanlal and Dhirajlal, The Law of Evidence 222 (Lexis Nexis 2019).

[4] Bryan A. Garner, Black’s Law Dictionary 3754 8^th edition 2004).

[5] Caesar Roy, Presumption as to Legitimacy in Section 112 of Indian Evidence Act needs to be Amended, 382, 383, 54 JILI (2012).

[6] AIR 1962 SC 1052. See also Ratanlal and Dhirajlal, The Law of Evidence 213 (Lexis Nexis 2019).

[7] Supra 3, at 215.

[8] State of West Bengal v. EITA India Ltd. AIR 2003 SC 4126.

[9] Union of India v. Pramod Guppta, (2005) 12 SCC 1.

[10] State of West Bengal v. EITA India Ltd. AIR 2003 SC 4126.

[11] Haradhan Mahatha v. Dukhu Mahatha, AIR 1993 Pat 129.

[12] Jagath Chandra v. Province of Bombay, AIR 1950 Bom 144.

[13] AIR 1954 SC 176.

[14] 1901 SCC OnLine PC 27.

[15] AIR 1926 Mad 628: 1925 SCC OnLine Mad 273.

[16] 1992 SCC OnLine Cal 153: 1993 Cri LJ 1659.

[17] Liaquat Ali Siddiqui, The Legal Status of a Child under Muslim Law, 87, (1994) 5 DULJ

[18] Ibid.

[19] ILR (1888) 10 All 289.

[20] (2001) 5 SCC 311.

[21] (2005) 4 SCC 449.

[22] (2014) 2 SCC 576.

[23] AIR 1993 SC 2295.

Author: Kumar Amogh,
Law College Dehradun, Faculty of Uttaranchal University and 4th Year/Student