Comments: proof of legitimacy. The presumption can only

Comments:

Principle:

Section 112 deals with the presumption of legitimacy of a child. The section is based on maxim pater rest quern nuptioe (he is the father whom the marriage indicates). It provides that a child was born during continuance of valid marriage between the mother and any man or within 280 days after the dissolution of valid marriage and the mother remaining unmarried, it shall be the conclusive proof that the child is a legitimate child of that man unless and until it is shown that the parties to the marriage has no access to each other at the time when the child would have been begotten. The sprit behind Section 112 is that once valid marriage is proved there is strong presumption about the legitimacy of children born during wedlock.

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When the above requirements are satisfied the presumption of legitimacy is a conclusive presumption of law. Child born during wedlock is sufficient proof of legitimacy. The presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. Section 112 is based on presumption of public morality and public policy. “It is a presumption founded upon public policy which requires that every child born during wedlock shall be deemed to be legitimate unless the contrary is proved.” The effect of this section is that a child born as the result of sexual intercourse between husband and wife is conclusively presumed to be their child.

A marriage presumed from living together for a long period is valid marriage for the purpose of legitimacy under this section. Under section 112 it is always for the father or person who wants to challenge the legitimacy of the child that there was no opportunity for intercourse between the father and the mother of the child. On the other hand, strong presumption is in favour of the legitimacy to the child born during wedlock.

The presumption of legitimacy of a child can only be displayed by a strong preponderance of evidence, and not by a mere balance of probabilities. This section applies to the legitimacy of the children of a married person only. Section 112 has no application where maternity in dispute and not paternity.

Scope:

Although the presumption of legitimacy is conclusive presumption it is equally based upon certain facts which must be present in favour of legitimacy.

To rebut the legitimacy it must be supported by direct or circumstantial evidence. Because, it has been known to all that “maternity is fact and paternity is a surmise.” It is certain that a woman gives birth a child but at the same time it is impossible to say who is the father. That is why, it is said that “the maternity admits of positive proof, but paternity is a matter of inference.” “Strictly speaking there are two presumptions under this section, one rebuttable and the other irrebuttable. First: there is presumption to start with in favour of legitimacy of the child born during wed lock; in other words there is presumption that the husband had intercourse with the wife at the time the child must’ have been conceived.

But this is rebuttable presumption where the evidence may be adduced to show that there was in fact no access, that is, no sexual intercourse. “Whether the presumption has been rebutted by proper evidence that such access did not take place as by the law of nature is necessary for a man to be in fact the father of the child, is essentially a question of fact.” The second presumption is, if the sexual intercourse is proved the law will not permit an enquiry whether the husband or some other man was more likely to be the father of the child, the presumption to be drawn here becomes irrebuttable one.” It is conclusive presumption of paternity of a child born during subsistence of valid marriage. Proof of non-access at time when child could have been begotten is only outlet to escape vigour of conclusive presumption.

Access and non-access:

The presumption of legitimacy of child depends upon effective access between the mother and the father. The parties to the marriage have had access to each other when the child was conceived. But, “access and non-access cannot have existence and non-existence of opportunity for marital intercourse.” Non-access can be proved by evidence direct or circumstantial though the proof of non-access must be clear and satisfactory as the presumption of legitimacy is highly favoured by law. From the date of marriage to the date when the wife left to go to her parents, there could not be access because of the wife’s physical ailments and a child born after nine months of marriage was held to be illegitimate. But, the illness of the husband is not sufficient to displace the presumption of access unless the illness is totally disabling. If husband can prove that there was no actual cohabitation, “non-access” is established. Thus the burden of proving illegitimacy is on the husband who has to establish that he had no opportunity to access with the wife when the child was begotten.

Valid marriage: presumption:

Father and mother of the appellant had been cohabiting for number of years and were treated by others as husband and wife. Six children including the appellant were born out of their relationship. There was no proof that her father and mother had subsisting earlier marriage. It could be said that there was valid marriage between husband and wife. Where evidence of marriage is insufficient, the court is not barred from drawing presumption of marriage for long living together under sections 112 and 114 of the Act. Where parties lived together for more than twelve years, three children were also born, there was presumption of valid marriage between the two, the mere fact that no evidence of saptapadi or sampradan could be produced now was held of no consequence.

Gestation:

The period of gestation mentioned is this section is 280 days. It does not mention any maximum period of gestation. If a child born after 280 days and after dissolution of marriage, “the effect of the section being merely that no presumption in favour of legitimacy is raised, and the question must be decided simply upon the evidence for and against legitimacy.” A child born within 280 days of the husband’s death is a legitimate child.

Child born 305 or 330 days after last opportunity for coitus is the child of the father. The period of gestation of 313 days cannot be said to be unreasonable. “The usual period of gestation from the first date of the coitus is between 265 and 270 days and delivery is expected is about 280 days from the first day of the menstruation period prior to a woman conceiving a child. It is true that sometimes the delivery can take place a few days before or after the said period of 280 days. Normal child born after normal delivery 171 days after first coitus between wife and husband. Normally, it should be held that the child was not of the husband.”

DNA Test:

The DNA is the genetic material in the cells of human body or any other living organism. Each cell receives half of DNA from biological mother and other half from biological father. It determines human character, behaviour and body characteristics. But non-access should have been proved.

The Supreme Court has expressed most reluctant attitude regarding application of DNA technology in resolving paternity determination. In Goutam Kundu v The State of West Bengal the prayer for establishing legitimacy and maintenance by a child through blood test was not accepted. Their Lordships held that there must be a strong prima facie case that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act. “This presumption can be displaced by a strong preponderance of evidence and not by a mere balance of probabilities.

The prayer for blood test was not accepted by the court. The court held that it cannot compel the father to submit himself DNA Test. Same view was held in Kamti Devi case by the Supreme Court regarding admissibility of DNA evidence in resolving paternity dispute. The parties to the marriage had no access to each other and to test blood group violates right under article 21 of the Constitution. Order directing DNA Test of child without hearing parties would be violative of natural justice.

Where there is evidence to show that the husband had no access to wife at relevant time when child could have been conceived adverse inference can be drawn against the husband from his proved conduct of not getting DNA Test conducted.

The DNA Test for proving paternity of the child can be ordered in exceptional and deserving cases only if it is in the interest of child. DNA Test cannot be ordered as a matter of course in every case. It is permissible in exception case. The use of DNA test can be resorted to only if such test is eminently needed. Order for DNA Test by the Women’s Commission is proper.