PRESUMPTION OF LEGITIMACY OF CHILD UNDER SECTION 112 INDIAN EVIDENCE ACT 1872: BY - PANKAJ NAGAR & AKANKSHA SHARMA
PRESUMPTION OF LEGITIMACY OF CHILD UNDER SECTION 112 INDIAN
EVIDENCE ACT 1872:
AUTHORED BY
- PANKAJ NAGAR
&
AKANKSHA SHARMA
ABSTRACT
Section 112 of Indian Evidence Act 1872 states about
the conclusive proof regarding the legitimacy of a child during the continuance
of a valid marriage. The main problem of this presumption is that it is based
on sexual intercourse between a married couple and ignores the other ways of
pregnancy like surrogacy, sperm banks, in vitro fertilisations etc as the proviso
of the section states about non access of the parties which impliedly terms as
there must be sexual intercourse between the husband and wife. One other
drawback of the section is that it does not recognise the advanced technology
developed by the science like DNA for the testing the paternity of a child as
DNA can accurately tell about the legitimacy of a child yet this section
precludes this aunthentic source. As this section was drafted in 1872 and at
that time science was not so developed and no concept of DNA was present there
but as Law is a living creature so this section should be amend as during the
course of time science has been developed at such level that the paternity of a
child can be determined accurately .
Key words : Presumptions,
Legitimacy , Paternity , Conclusive Proof etc.
Chapterization:
1. Introduction
2. Presumtions
and its kind
3. Scope and
objective of section 112
4. Conflict
between DNA and Section 112
5. Conclusion
Introduction
“It is the paternity which is to be
determined as maternity is always ascertained”
The legitimacy of a child is
considered as one of the prominent issue in our country. As it leads to the
chasity of a woman and the child would also be considered as Bastard if his
paternity is unascertained. So the framers of the act make this section a
conclusive proof by keeping this issue of paternity in mind . As the act came
in 1872 at that time the Science was not so much developed like DNA were not
discovered so according to that time the framers made two things as the base of
legitimacy First is there should be continuation of a valid marriage and the
second is husband and wife should have access to each other they also
considered the legitimacy of a child in womb that if any child have born within
280 days from the date of cessation of
the marriage such child shall be considered as the legimate child of that
couple.
Presumptions and its kinds
Word presumption is not defined
anywhere in Indian Evidence Act 1872 but the honble Supereme court in Suresh
vs Maharashtra (1998 SC) held that presumption is an inference drawn
from other proved facts and A presumption can not be taken from other
presumptions. According to Phipson (a English jurist) Presumptions are the inferences which a mind
naturally and logically draws from the facts without the help of any legal
directive.
Why Presumptions ?
As presumption arises the burden of
proof shifts to the accused now it is the duty of the accused to revert that
presumptions which leads the court to decide the matter speedly.
This concept of presumption is based
on a general principle that “It is the
interest of the state that there should be end to litigation”
Does court can take presumption on any matter ?
The answer is no as the court are
allowed to take presumptions only on those matters which are given under Indian
Evidence Act 1872. The Act allows presumption basically on following matters
1. Specific matters like section
113-A,113-B etc
2. General matters like section 114
Kinds of presume.
presumptions
Presumptions can be categorized in
two parts.
1.
Presumption of fact i.e May Presume
Section 4 of the Act
defines all kinds of presumptions.
It defines may presume as – “Court may presume a
fact it may either regard such fact as proved unless and until it is
disapproved or may call for the proof of it”.
Such presumptions are the
presumptions of the facts they are drawn from the law but drawn from the
reasoning faculty of a human being i.e logic of a person. These presumptions
are drawn from the logic thats why they are permissive presumptions because
court have discretion to allow or not to allow them. While making a presumption
under ‘may presume’ court should apply reasoning which any intelligent person
should apply. Since these presumptions are based on logics and reasoning the
natural justice demands that these presumptions must be rebuttable. If it is rebutted it stand cancel and if it is
not rebutted it becomes proved.
2.
Presumptions of law:
Presumptions of law are
arbitrary inferences which the law expressly directs the judge to draw from
particular facts, these presumptions are based on consideration of public
policy there may or may not be any logic.
These are artificial
presumptions because law forces the court to take presumptions of the fact
whether or not based on logic. It is bound to presume a fact unless it is
rebutted.
Presumptions of law can
further be divided into two parts
a)
Rebuttable
presumption of law which are reflected as Shall presume.
Section 4 defines Shall
presume as – Court shall presume a fact. It shall regard such fact as proved
unless and until it is disproved .
In this type of
presumption if party is not able to rebut the presumption then it graduates to
prove .
Section 79 to 85 , 85
A,B,C ,89,113-B,114 A are some examples under Indian Evidence Act of shall
presume.
b)
Irreubattle
presumption of law which are reflected as Conclusive proof.
Section 4 states
conclusive proof as – When one fact is declared as conclusive proof of another,
court shall on proof of one fact regard other as proved and shall not allow
evidence for disproving it.
Only three sections i.e
112,113 and 41 of the act are those sections which deals about the conclusive
presumption.
In this type of
presumption of law no rebuttance is allowed and hence on proof of one fact the
other fact is automatically deemed to be proved. This means that no fact is
allowed to demolish or disprove such facts.
Section 112:
Section 112 of the Act
states - Birth during marriage,
conclusive proof of legitimacy: The
Fact that any person born
A)
During
the continuance of a valid marriage between the mother and any man or
B)
Within
280 days after its dissolution mother remaining unmarried
Shall be conclusive proof
that the child would be the legitimate child of that man.
Proviso- Unless it is
shown that the parties to marriage had not any access to each other at the time
when child was begotten.
- Now the question arises
does valid marriage involves livin relationship?
Honble Supereme Court In Ranganath P Mali v EG Kurkarmi (1996 Sc) held
that
A)
If the livin relationship is for a long
period.
B)
If
people think them husband and wife
C)
Have
legal validities to marry.
D)
Are
not married.
Then Section 112 would
lie to livin relationship as well.
Next question arises is
what does word “access” in proviso means ?
So this access word has
been taken in broad sense by apex court In Bhagwan
Baksh singh vs Mahesh Baksh Singh - Access includes not only sexual intercourse
but also opportunity to have sexual intercourse.
And this is now a settled
law as well that access does also includes opportunity to access If husband is impotent then it would amount to
NO ACCESS But if he is potent and even after adultery of wife and husband have
access then presumption of 112 would lie to husband.
DNA and 112
Deoxyribonucleic Acid
(DNA) in 30 to 300 billion population only two person can have the same DNA and
population of the world is less then 8 billion so no two person can have same
DNA . Still it does not prevails the presumption of section 112 . When section
112 was envisage there were not the concept of DNA at that time DNA is much
later addition and it is based on a scientific evidence.
So The Supereme Court in Gautam
Kundu v State of West Bengal (1993 sc) On one hand Held that DNA can
not be roving inquiry and DNA should only be ordered where there is an eminent
need and also held that DNA is merely a balance of probability and it is merely
an opinion evidence (corroborative) So it can not prevail conclusive proof.
However with the course
of time DNA can be considered as a flawless way of determining paternity and
both High Court whether Delhi High Court in Kanchan Bedi case or Madras High court plead that why can not we
use DNA as a substantive piece of evidence.
However The Supereme
Court take a great care while deciding this issue because one great danger in
declaring DNA a conclusive evidence is that it may amount to judicial
legislation, it is not job of Supereme court to make laws it is the job of
legislation it is the job of legislation courts can only interprate. Probably
Supereme court take the step in a landmark case named as Vasudev Nandlal Badwaik v Lata Nandlal Badwaik (2014 SC) apex court
held that where a scientific advancement is prove by the community then it can
prevail over the conclusive proof of section 112. Here this judgement lead to
change or contrary to the provisions of the constitution which would lead to
judicial legislation so finally in 2019 Supereme Court in Pattu Rajan v State of Tamil Nadu (2019 Sc) Refurbished section 112
and held in sense we cannot override 112 as a thumb rule and thus DNA can not
regale conclusive proof. However a window is still open that it varies from
case to case which appears to be balanced view that DNA can neither totaly be
denied nor can prevail over section 112.
Conclusion
This section under Indian Evidence
Act was fine when it was framed as at that time the requirement of society is
to secure the legitimacy of a child and protect a woman from being unchaste and
also a child from becoming Bastard. But as after 150 years of framing of this
section as science has developed the legislation should amend this section as
this section is a conclusive proof which leads to the invalidity of the most
accurate thing i.e DNA for determination of paternity . As the law is a living
creature so it should be keep changing according to the needs of the society
because law is for society not the society for the law . According to various
cases discuss in this article it can be concluded that prevailing DNA over 112
would not lead to the infringement of Fundamental right under constitution so
our legislation should take some step to make this law more useful and in
accordance with the demand of current time .