Presumption of Paternity in Law

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Question asked on: 17/11/2014

My marriage was solemnized in year 2009 and child was born within 8 months from marriage. My wife is very shrewd and hush regarding her pre-marital life. I have some strong reason to doubt that child is not legitimate because she had some affair with colleague and he had been very curious regarding birth of child. However, he never interrupted in my life but he has still trying to collect information about my child. Can I file a case for DNA testing for determination of paternity of child?

Advised by: Shivendra Pratap Singh,

Section 112 of Indian Evidence Act, embodies the basic principle of law regarding paternity. The law presumes a person is the legitimate child of his father if 

He born during the continuance of a valid marriage between his mother and any man or 

Taken birth within two hundred  and eighty days after its dissolution and  the  mother remains unmarried,  

Upon fulfilment of the above-said conditions, it is a conclusive proof that he is the legitimate son of that man with whom his mother is/was married.

If it shows that the parties to the marriage had no access to each other at any time when he could have begotten, then it shall prevent the court to presume his legitimacy. 

Sec 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.

The rule, contained in the above Section, that continuance of a valid marriage will prevent an inference being drawn to the effect that the children born to a woman during the continuance of the valid marriage were born to another person as a result of adulterous intercourse is only a rule of evidence.

The presumption which Section 112, Evidence Act, 1872, contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the Section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature, the husband could have been the father of the child.

It is the principle of law that “Odiosa et inkonesta non sunt in lege prae sumenda” (Nothing odious or dishonourable will be presumed by the law). So the law presumes against vice and immorality.

In Goutam Kundu vs. State of West Bengal and another, Supreme Court held about paternity test ( DNA test).

That Courts in India cannot order a blood test as a matter of course. Wherever applications are made for such prayers in order to have a roving inquiry, the prayer for a blood test cannot be entertained. There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

The Court must carefully examine as to what would be the consequence of ordering the blood test, whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. No one can be compelled to give a sample of blood for analysis.

We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleric Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature.

The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g., if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable.

Sham Lal @ Kuldeep vs. Sanjeev Kumar and others, (2009); Once the validity of the marriage is proved then there is strong presumption about the legitimacy of children born from that wedlock. The presumption can only be rebutted by a strong, clear, satisfying and conclusive evidence.

Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) Supreme court expressed his view on the DNA test that ” In a matter where paternity of a child is in issue before the court, the use of DNA test is an extremely delicate and sensitive aspect.

One view is that when modern science gives the means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires.

The other view is that the court must be reluctant in the use of such scientific advances and tools which result in an invasion of the right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have a devastating effect on the child.

Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception.”

It was permissible for a Court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption and this presumption is in favour of paternity.

But the court may order to conduct a DNA test to determine the veracity of the allegations, which constitute one of the grounds, on which the concerned party would either succeed or lose.

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Shivendra Pratap Singh

Advocate, Lucknow

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