Presumption of paternity of child

Question asked on: 17/11/2014

How to presume paternity of child? Is there any law regarding the presumption of paternity of child in devoid of any direct evidence?

Advised by: Shivendra Pratap Singh,

The basic principle of law, which is laid down in sec section 112 of Indian Evidence Act, that if a 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 and  the  mother remains unmarried,  it shall be taken as  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.

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.

Presumption of paternity

The presumption which Section 112, Evidence Act, 1872, contemplates, is a conclusive presumption of law regarding paternity 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 about presumption of paternity 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.

Case law

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

  • That Courts in India cannot order blood test as a matter of course.
  • Wherever applications are made for such prayers in order to have roving inquiry, the prayer for 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 samle 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 unrebuttable.

Sham Lal @ Kuldeep vs. Sanjeev Kumar and others, (2009) :- Once the validity of marriage is proved then there is strong presumption about the legitimacy of children born from that wedlock. The presumption of paternity 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 DNA test that ” In a matter where presumption of 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 invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have 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 court may order to conduct 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.

Send your question

Shivendra Pratap Singh

Advocate, Lucknow

Advice: 16865

Consultation: 3329

Further investigation after filing closure report

The investigating officer has submitted a closure report in the Magistrate’s court. Can the court pass an order of further investigation after filing of the closure report? There is enough evidence against the accused. But accused are very powerful and have the capacity to influence the investigation. They have influenced the investigating officer and frustrated the investigation. The investigating is indeed unfair and against the law. Sixteen investigating officers have changed during the investigation. The last one has filed the closure report stating that the complainant did not produce any credible evidence against the accused. How do I get further investigation after filing of closure report?

Quashing of first information report (FIR)

I want the quashing of the first information report (FIR). A false first information report FIR has been lodged against me by the university. There are three students who are working on a project in association with me. I am the senior most of them hence, has a privilege to check the progress report of others. Now the university says that I have prepared my thesis on the materials and data collected by the fellow researchers. I have the evidence to prove that allegations are false. I have kept the record of all data and findings of tests which are not related to the others. One advocate says that I should file a case in the high court under Section 482 crpc. Please help.

Trap without FIR or complaint

I want the quashing of trap proceeding. The Maharashtra anti corruption team has trapped me without lodging a complaint or first information report. In this situation can I challenge the trap case in the High Court because the trap was without FIR? After the trap they prepared a report and submitted it to the court. The court has granted seven days judicial custody. Please suggest what I should do?

Critical Examination of the Growth of Cyberstalking in India

The pervasiveness of the internet has redefined how people communicate and interact. However, the digital age has also introduced new threats, such as cyberstalking. Cyberstalking involves the use of the internet or other electronic means to stalk or harass an...

recall of witness in cheque bounce case

सर,मेरा नाम लख्मीचंद है मुझ पर १३८ का एक मामला दर्ज है जिसमे मामला दायर करने वाले का बयान हो चूका है मेने दूसरा वकील कर लिया है ..वकील मामला दर्ज कराने वाले का दोबारा बयान करवाना चाहता है, परन्तु अपील ख़ारिज होती नजर आ रही है यदि दोबारा बयान होता है तो मुझे न्याय मिल सकता है क्योकि मेने २४१२०० का चेक दिया था ९०००० नकद दिया था १५१२०० का दूसरा चेक दिया फिर २४१२०० का चेक कैंसल कर करके १५१२०० का चेक बाउंस हुवा है पर मामला दायर करने वाले ने ९०००० नकद का कही भी जिक्र नहीं किया ..न न्यायलय में न ऑडिट रिपोर्ट में …दोबारा बयान होगा तो सच सामने आ सकता है में बच सकता हु ..मेरी मदद कीजिये सर

Violation of right to privacy as my uncle is getting my cdr and location 

Greetings sir/mam, Recently my parents expired and then me and my sister decided to come with my uncle but now he is creating problems for us by listening to or cdr and finding our location every single time we are not comfortable in this and no one will be please help how i can stop this.

Cruelty against women

Cruelty against women in India is a serious and pervasive issue that affects millions of women and girls in the country. This form of violence can take many different forms, including physical, emotional, and sexual abuse, and it is often perpetuated by family members...

How to proceed against the person who had falsely complained against me?

How to proceed against the person who had falsely complained against me? I got an acquittal order on 13/02/2023. After how many days I can file a private case against those who falsely complained and gave false evidence against me.

Prosecution after retirement

Can a department prosecute to its employees after retirement for his Negligence to fulfil his duties?

Cheque bounce case

Within what time can I expect justice for a check bounce case? (either I have to get money or action against the person who issued the check). If he fails to pay, what would be the minimum and maximum legal action against that person?

What would be the approximate court expense and lawyer fee (pls mention yours) for undertaking the check bounce case? (In my case the check bounce amount is RS 50,000). Bouncing of a cheque invites criminal prosecution under section 138 of The Negotiable Instruments Act, 1881. Punishment for the offence under section 138 of the NI Act is imprisonment up to two years or fine which may extend to twice the cheque amount or both. The offence is bailable, compoundable and non-cognizable.

quick Advice

Get A Quick Advice

Book an appointment for 15 minutes and consult with an expert over the phone within minutes

Talk to Advocate Shivendra

Book a phone consultation for 30 minutes and get solid advice on the phone

Book it Now