Section 112 of Indian Evidence Act, 1872 (hereinafter 'the Act'), which provides for legitimacy of the child born out of a valid marriage, has been the centre of debate for the last several years. Section 112 of the Act which is based on the legal maxim "Pater est quem muptice demonstrat" which means "he is the father whom the marriage indicates" faces challenges from development of.
Section 112 of Indian Evidence Act, 1872 (hereinafter 'the Act'), which provides for legitimacy of the child born out of a valid marriage, has been the centre of debate for the last several years. Section 112 of the Act which is based on the legal maxim "Pater est quem muptice demonstrat" which means "he is the father whom the marriage indicates" faces challenges from development of the science regarding DNA test which does not stand on the legs of indication but determines the paternity with certainty. The present article is an attempt to demystify the law in this regard and the approach to be adopted.
112. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
Bare perusal of Section shows that a child born out of wedlock or even after its dissolution but within 280 days and mother remains unmarried by then, is a conclusive proof of his/her legitimacy qua the man to whom his mother is/was married. Conclusive proof as defined in Section 4 of the Act:
"Conclusive proof".—When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
To put it simply, Conclusive proof regarding one fact is preconditioned on the proof of another fact and once so presumed, the law forbids entertaining any evidence to disprove such conclusively presumed fact. The presumption- whether rebuttable or irrebuttable provides assistance to the judicial mind in appreciating the existence of fact but in the case of irrebuttable presumption, it is statutorily strengthened and placed beyond the pale of rebuttal.1
Implying it in terms of Section 112 of the Act, proof of the factum of valid marriage between the child's mother and another man is sufficient for the court to take such fact as conclusive proof of legitimacy of the child with regard to the person to whom his/her mother married. However, the Section itself provides for an escape, though limited one, from the rigour of Section 112 of the Act, by proving non-access. Proper construction of the two Sections, namely Section 4 and Section 112, would show that solely the proof of non-access would be allowed to negate the operation of presumption which is otherwise irrebuttable in nature.
Here the word non-access as interpreted in Goutam Kundu v. State of West Bengal2 would mean the non- existence of opportunities for sexual intercourse, it doesn't mean actual cohabitation. The use of the word "at any time when he could have been begotten" in Section 112 of the Act further enlarges the rigour and provides that the non-access,in above interpreted terms, is to be proved not only at the actual time when the child could have been conceived but during the whole time when the child could have been said to be conceived. The word access here means effective access and the physical incapacity to procreate if established, would amount to non-access within the meaning of this section. Similarly, any other evidence of such non-access, whether direct or circumstantial, can be given for its proof.
The burden of proof for proving non-access, in the above interpreted terms, is on the party alleging so. This negative burden of proof is based on the rationale that the law in general presumes against vice and immorality, and the burden to disprove the same is on the person who alleges otherwise. The law further dictates that the burden will not be discharged by mere preponderance of probabilities. Rather, the burden of proof that is to be discharged is that of strong preponderance of probabilities.3 In other words, the evidence of non-access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive.4 Hence a bare explanation though plausible in nature would not be sufficient rather the proof in terms of the word "proved" as it appears in Section 3 of the Act is required.(Please refer to Kuna@ Sanjay Behra v. State of Orissa5 as to the standard of proof about existence or nonexistence of circumstances)
This rule, based on the dictates of justice, has always lead the court upholding the legitimacy of the child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not have at all begotten by the husband and such a legitimization of the child would result in rank injustice to the father.
Since the law bends in favour of legitimacy and does not allow evidence to disprove it in any of the circumstances with only few exceptions, the dilemma regarding the right of the innocent husband, being unnecessarily burdened with the liability of the child which he knows is not his biological child, and the need to protect the interest of the child, continues. In this scenario, the DNA test for paternity, with no question as to its reliability over proof of paternity except the procedural part6, assumes significance and advances the cause for further deliberation and debate.
The experience shows that disputes regarding paternity may arise in the proceedings related to maintenance, succession, divorce etc. and the power to order DNA test lies with the civil court under Section -75(e),Section 151 and Order XXVI Rule 10-A, Code of Civil Procedure 1908.7 The approach of the court while dealing with the application for grant of permission for conduction of DNA test can be looked into through various judicial interpretation as delineated below:
The Supreme Court while overturning the directions of the blood test laid the following guidelines:
"26. From the above discussion it emerges:-
The Apex Court while holding that Goutam Kundu(Supra) cannot be considered as an authority to hold that in no circumstances the blood test can be ordered has clarified that this court, having regard to the future of the child, has, of course, sounded like a note of caution regarding the mechanical passing of such order.10 The Court in Sharda's case while holding that the directions to undergo such test would not violate a person's right to privacy, has further held that
"86. To sum up, our conclusions are
The Apex court, while denying the permission to conduct DNA test for the purpose of disproving the paternity of the respondent in the succession proceedings, has held that DNA shall not be ordered as a matter of routine and only in deserving cases. This case is not fit for directions and the parties are required to prove their case with other evidence.
The court while overruling the permission granted for conduction of DNA test by the Orissa State Commission for women and affirmed by the Hon'ble High Court, has held that such test should not be directed in normal course of routine. Court further held that:
"22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of `eminent need' whether it is not possible for the court to reach the truth without use of such test."
The law enunciated by courts as explored above, has although embraced the scientific development for the advancement of justice but maintained that a cautious approach is required to be taken in such cases as the court exercises protective jurisdiction for the infant. The person seeking the DNA test has to make out his case by satisfying the parameters laid down by courts in various authorities sighted above. If the court has reason to believe that the application is of fishing nature or filed with ulterior motives, the request shall not be acceded to, as it may result in besmirching the child as a bastard and his mother as an unchaste woman. Further, if a person declines to comply with the directions issued by court, a presumption of the nature contemplated in Section 114 illustration (h) of the Act could be taken, which provides:
That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
The journey through case laws would suggest that in the cases where the application filed on behalf of the child or his/her mother, the court has allowed the application, but not as a matter of right, but if it finds it to be in the interest of the child, as Section 112 of the Act bars disproof, not the further proof of legitimacy. In Kanchan Bedi v. Gurpreet Singh Bedi13 the High Court allowed the application for DNA test filed by the woman in the proceedings for maintenance wherein the paternity has been denied by the husband. Further in case of Dwarika Prasad Satpathyv. Bidyut Prava Dixit1 4 , the Apex Court went on to hold that not merely an adverse inference under Section 114 of the Act but refusal to undergo a DNA test would bar a party from challenging the paternity of the child. Further Rohit Shakhar v. Narayan Dutt Tiwari15 case suggests that the court went on to hold that resorting to the law of adverse inference being drawn against the person refusing to submit for such Court directed DNA test would not be sufficient and even appropriate coercive steps can be taken for collection of blood samples.
In the cases where the application is filled by the legal father or any other person then despite the presence of the option of a DNA test, the courts have always resorted to it as a last option and in absence of the plausible theory being advanced regarding non-access, such requests for the DNA test are rejected. As any act which may lead to the branding of the child as illegitimate shall be subjected to higher scrutiny. Which means that mere bald allegations or averments in the pleadings will not be enough, rather sufficient material should be brought before the court to sustain the claim of non-access before directions as to DNA test being granted. Social welfare and the child's right to dignity and privacy have been given preference over the individual rights.
The Apex court in Nandlal WasudeoBadwaik vs Lata Nandlal Badwaik &Anr16 while facing the question of DNA Report being available on record and no objections being taken as to the establishment of prima facie case for non-access at the time when direction for DNA Test was called for, held that in such a situation the DNA test will prevail over the presumption of Conclusive proof under Section 112 of the Act. The Court observed:
As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl- child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that respondent No. 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstances, which would give way to the other is a complex question posed before us……..…….While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. 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. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.
. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice.
The court has further differentiated the Case of Kamti devi v. Poshi Ram17,wherein it was held that even a DNA test report is not sufficient to negate the presumption of Section-112 of the Act , that the court in that matter was't facing this peculier question and even no DNA test was conducted and no report as such was available before the court.
While the judgment in N andlal case1 8 rightly acknowledged that the person cannot be burdened with the responsibility of the illegitimate child and holding so would be denying the truth and consequently the Justice itself. But at the same time the dictum of the Apex Court also goes on to suggest that evidence having strong probative value (DNA Test report being one such example) can displace the presumption of conclusive proof which was otherwise irrebuttable. The judgment doesn't indicate invoking the extraordinary powers of Article 141 being invoked. With utmost respect, it is submitted that in the limited understanding of the author the said suggestion as to the rebuttablity of presumption, conclusive proof, could have been avoided by accepting the DNA report as proof of non-access, with regard to which the court hinted but instead of holding so went on to pose conclusive proof against DNA test report and hold that the later will prevail over the former.
After the judgment of Nandlal's case , the Apex Court in Dipanwita Roy vs Ronobroto Roy19 case has allowed application for DNA test , in the proceedings for divorce based on the allegations of adultery. The court has held that conduction of such a test would allow both the parties to prove their case with certainty qua the allegations of infidelity. The court further held that though the result of DNA test would certainly affect the interest of the child but Section 112 of the Indian Evidence Act,1872 is not strictly attracted in the proceedings for divorce based on allegations of adultery by wife. However, the Court has given the wife the liberty to refuse to undergo such examination but held that doing so would attract adverse inference being taken under Section 114 illustration (h) of the Act. The judgment has drawn criticism for not considering the provisions of Section 112 of the Act while deciding on such application for DNA test in the proceedings for divorce based on wife's adultery as this could provide for an escape route from the presumption under Section 112 of the Act. The judgment in Dipanwita Roy's case is to be understood as not laying down a law for DNA Test to be ordered as a matter of routine, but rather it has to be inferred from the facts and circumstances of the case whether in that particular case the DNA test can be allowed or not. The position in this regard was aptly summarized in Jahir vs Rajan & Ors20 by the Punjab and Haryana High Court wherein the court has held that
In addition to the above it can be stated that the Nandlal's case has the binding force in the cases when the DNA test report is available on record, so as to determine its conclusivity over the presumption under Section 112 of the Act. In the cases wherein the application filed for the permission to seek DNA test, the law laid down in Goutam Kundu(supra), refined in Sharda(supra), and summarised and followed in Bhabani Prasad Jina(supra) still holds the field.
The accused or defendant, in cases where DNA report is adverse, often demands repetition of DNA test on various grounds of procedural lapse, namely extraction of blood samples, breakage of chain of custody etc. Several petitions to resolve this issue have been decided by the higher courts in 2015. In Pandya Hashmukhbhai Ambalal v. Pandya Sharmistha Hashmukhbhai, the petitioner husband filed a divorce petition accusing the wife of leading a promiscuous life and denying himself as being the biological father of the three children born to her. The DNA test falsified the allegation but the petitioner challenged the DNA results, alleging some procedural lapses leading to incorrect conclusion. Considering the act of petitioner-husband as not only an abuse of law but also an insult of his wife, the high court dismissed the writ with cost. For ordering a second DNA Test, the High Court of Madras has laid down certain guidelines listed below:
A revision petition for fresh DNA test casting a doubt on the previous sampling of blood was dismissed since no discrepancy was observed by the high court in sample collection.22
With requirements of compliance of such strict standards as described above for court ordered DNA test and easy availability of the private labs requiring no such orders for conducting DNA tests, a question may arise as to the admissibility of such private labs DNA test report regarding paternity,in courts. Particularly after the Nandlal's case holding that a DNA test Report will prevail over the conclusive presumption under Section 112 of the Act.The admissibility of any evidence as to any fact depends on its relevancy.23 As far as relevancy goes such test reports are relevant under Section 9 and Section 45 of the Act and hence admissible.However,the issue arises as to the manner of procuring it and its reliability. In case of a dispute as to paternity, a secretly conducted DNA test over the child by either the Father or mother, involves the violation of the right to privacy of the child, who should not be subjected to such examination in absence of any law or any court directions ruling that such test would be in the interest of justice, and the right of the other party to live with dignity. Though any of these Fundamental Rights are not absolute but deprivation to them should be by a procedure established by law which is reasonable, just and fair.24 Hence such an evidence can be said to be an illegally procured evidence. The law as to the admissibility of the illegally procured evidence was settled long before in Pooran Mal v. The Director of Inspection (Investigation), New Delhi& Ors.25 , case which was followed by the Delhi High Court recently in D eeptiKapur v. Kunal Julka2 6 wherein the High Court while discussing Justice K. S.
Puttaswamy (Retd.) & Anr. vs. Union of India & Ors27, has held that the Apex Court has recognised the Fundamental Right to Privacy but hasn't dealt with the effect on the evidence brought in violation of such right. The High Court has finally held that being procured in violation of the Fundamental Right to Privacy alone is no bar on the admissibility of such illegally procured evidence. It has been held that an evidence brought illegally is admissible as the Indian Evidence Act, 1872 prescribes only one criteria i.e relevancy and not the manner in which the evidence was procured. The court further held that making the evidence admissible doesn't mean that the fact in support of which it is given is proved, it is merely an inclusion of evidence in record. It only means that the court may take into consideration the evidence placed on record while deciding on whether the fact alleged is proved or not. In other words, mere admissibility of the evidence doesn't certify its reliability. The court further sounded a note of caution that " the possible misuse of this rule of evidence, particularly in the context of the right to privacy, can be addressed by prudent exercise of judicial discretion by a court not at the time of receiving evidence but at the time of using evidence at the stage of adjudication"28 The court further cautioned that this admissibility of illegally procured evidence must not be taken as a license for illegal collection of evidence and held that a separate legal action can be taken against such violators.
With regard to the reliability of such a DNA test report conducted through a private lab, the chances of manipulation of the data supplied for such a test, its chain of custody, cannot be denied. Further, issues may arise as to the competency of the lab to produce such a report with accuracy. The court shall always be skeptical about accepting such a report, and may call for its proof through examination of an expert witness or any independent witness as to the identity of the persons who gave samples, the procedure of sample taking and its chain of custody thereafter. However, if satisfied as to its genuineness, in the limited understanding of the author, merely being a private lab report shall be no bar to its acceptability.
The present form of the Section, enacted about 148 years before, is inefficient in serving the needs and development of the fast moving society. The inefficiency can be seen as delineated below:
The Indian Evidence (amendment) Bill,200329 based on Law Commission's 185th report, while keeping the degree of presumption under Section 112 of the Act intact, has recommended the inclusion of the DNA test and a blood test, conducted with the consent of the parties and in case of a child with the permission of the court, as a legitimate means to negate the presumption under Section 112 of the Act. Further the bill while suggesting so, also recommended that at least two identical verdicts should suggest that such a man is not the biological father of the child. It would be worthwhile to mention that the bill contains provisions that refusal of the man to submit for examination for the scientific test provided above, would lead to deemed fiction that he waived his defence against any claim of paternity against him but such a proviso is significantly absent in case the directions for DNA test are passed wherein the child and his/her mother are opposing such plea. However, the bill is yet to see the light of the day.
The DNA Technology (Use and Application) Regulation Bill, 2019, provides for regulation of DNA test in civil matters including paternity issues. The bill provides that no laboratory other than the one accredited by the DNA Regulatory Board established under the Act, shall undertake DNA testing,analysis etc.30 The Act further provides for the obligation of the accredited labs for quality and safety standard to be maintained as to the collection,storage testing and analysis, and regulatory measures to be taken by DNA Regulatory Board in this regard.31 This bill faces certain concerns with regard to its regulation of DNA technology in civil matters as to silence over the safeguards as to consent for DNA profiling, the storage,retention,deletion of Data with authorized laboratories and DNA data Banks to be established under it. It would be interesting to see the operation of the provisions of the bill ,if it becomes an Act, in relation to Section 112 of the Indian Evidence Act,1872 in present unamended form.
Though duty to enact a law addressing the needs of the society is the duty of the legislature but the Courts are also entrusted with a duty to do justice and interpret the law so as to fill the gap created by the advancement of the society and the suitability of the old enacted law to regulate it. By the time a suitable law is enacted regulating the DNA test and the amendment in Section 112 of the Act, an innovative interpretation of the Section is required. As every statute is to be interpreted at the given time and the context in which you are applying it. What may be constitutional today may not be constitutional tomorrow.The full bench of the Apex Court in State v. S.J. Choudhray32,which was reaffirmed in All Kerala Online Lottery Dealers Assn. v. State of Kerala33, has held that
" xxx xxx xxx (2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law.
xxx xxx xxx An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials."
Hence in light of the above, unless the rigor of the law is lifted by the legislature, a dynamic interpretation needs to be done for the wordings of Section 112 of the Act specifically with regard to the words when the child could have been begotten and word non-access as done by Kerala High Court in Rajesh Francis v. Preethi Roslin3 4
"45. When can it be said that the child was begotten? It is certainly not the date of marriage. It is certainly not the date of delivery. It is the date on which the sperm from the father should have met the ovum of the mother. The date of fertilization of the ovum is certainly the date on which the child could have been begotten. The date of successful sexual intercourse which led to fertilization is certainly the date on which the child can be said to have been begotten for the purpose of Section 112. All we intend to note now is that even in a case where the presumption under Section112 operates, there is burden on the court to ascertain the date on which the child in question could have been begotten. That date has to be ascertained with the help of all relevant inputs. All relevant evidence - direct indirect circumstantial, scientific and expert testimony, will all have to be looked into to ascertain the date on which the child could have been begotten. It is only then that it can be ascertained whether there was access or non-access of the man and the woman to each other on the said date/period.
Law if interpreted in the terms as delineated above would not only address many of the problems arising out of the scientific advancement such as IVF, surrogacy etc but also to the problem arising out of complexities of life and societal advancement wherein the sexual intercourse before marriage and outside wedlock after marriage is not a rarity. Law shapes the society and when outdated the society shapes the law. While it is true that the state must act proactively to protect the weaker section of the society but law can't act in an unfair manner and the mechanism is to be devised to align the interest of both the legal father and the poor child. The solution lies not in denial but in advancement of justice through scientific means when available. But one thing that is to be kept in mind is that while DNA testing can be one of the means but not the end in itself. Further, as the term Justice is very much subjective, there can be no definite yardstick for allowing or disallowing the DNA test and the question needs to be answered in the factual scenario. However, its report acceptance as a proof of non-access as interpreted in the judgment of Rajesh Francis(supra),if found to be so,shall be taken as conclusive to establish the fact of non-access to negate the presumption under Section 112 of the Act. A delicate balance needs to be struck between the existing value based system and modern system based on science and technology.
Views are personal only.
(The author is a former Law Researcher,Supreme Court of India and presently working as APP,Central Bureau of Investigation (C.B.I.).)
1. Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, para 25
2. (1993) 3 SCC 418
7. Sharda v. Dharmpal, (2003) 4 SCC 493
8. Supra note 2
9. AIR 2003 SC 3450
10. Id, para 40
11. (2005) 4 SCC 449
12. (2010) 8 SCC 633
13. AIR 2003 DEL 446
14. (1999) 7 SCC 675, para 5
15. AIR 2012 Del 151
16. Supra Note 6
17. Supra Note 3
18. Supra Note 6
19. (2015) 1 SCC 365
20. 2015 LawSuit(P&H) 4133, Para 4
21. "FORENSIC LAW" by Gajendra K. Goswami at pg 623
26. 2020 SCC OnLine Del 672 27. (2017) 10 SCC 1
29. Available at:
32. (1996) 2 SCC 428
33. (2016) 2 SCC 161 at p. 197
34. 2012 SCC Online Ker 5356
