Author: Garima Tyagi, III year of LL.B. from O.P Jindal Global University, Jindal Global Law School, Sonipat
This paper aims to shed light on the principles that were originally the foundation of Section 112 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) and its incompatible application due to modern technologies and revised social norms attached to legitimacy, ‘morality’ and parentage.
What does the section do?
This section presumes legitimacy of a child born within a wedlock. It is broadly based on the general principle of ‘Pater estquemnuptiaedemonstran,’[i] a latin maxim for ‘He is the father, whom the nuptials point out’. This legitimacy is also granted when the child is born outside the purview of marriage, within 280 days[ii]of the dissolution of marriage, wherein the mother has remained unmarried.
A crucial aspect of this section is that the presumption is a conclusive proof of law, based on the principle of ‘odiosa et inhonesta non sunt in legepraesumeda’, meaning that the court will never presume anything dishonorable[iii]. As highlighted in Section 4 the Act, this type of proof does not warrant any discretion from the court and does not require the party to prove it. While I do think that ‘honour’ is not intrinsically associated with sexual intercourse within a marriage and that sexual intercourse is not essential for having a child. But considering that the section is more than a hundred years old coupled with the fact of social stigmas and unforeseeable medical advancements for example In-vitro fertilisation (IVF), the section was of grave importance to prevent ‘bastardisation’ of innocent children and protect the ‘chastity’ of the mother. Even polygamy was deeply rooted and rampantly practiced, this section protected women from possible exploitation at the hands of the society and the husband[iv], by affording her and her child the requisite legitimacy to survive.
The only possible way to rebut the presumption as it relates to section 112 is to prove the factum of non-access, for which the case of Kamleshwar Prasad Chankiyal vs. Madhuri Devi[v],can be taken into consideration. Furthermore, access is not related to actual co-habitation[vi], but of possibilities for conception. This rebuttal will not succeed if it is solely based on the balance of probabilities but the appellant husband will have to ensure that it is significantly clear and satisfactory[vii]that there was no opportunity from both the parties to engage in sexual intercourse during the period when the child could have been begotten.
The gift of science
Over the years, due to improvements in the scientific field which gave rise to DNA testing, it has proven to be a challenge for the narrow and strict application of the ‘non-access rebuttal’ being the sole defence against the conclusive proof of legitimacy. As we see in the case of Kanti Devi vs. Poshi Ram[viii], even admission of a DNA result was considered insufficient to rebut the presumption of paternity, the court cited lack of precedence and chose to ignore the medical report. But more recently, in cases like NandlalWasudeoBadwaik vs Lata NandlalBadwaik&Anr.[ix],there seems to be a recognition of undeniable accuracy of the DNA test as the court iterates that a conflict between conclusive presumption and the DNA test should result in the prevalence of the latter. Even in the case of Dipanwita Roy vs. Ronobroto Roy[x], the court very clearly stated that a DNA test is enough to sufficiently dislodge the presumption made under Section 112 of the Indian Evidence Act. Due to a lack legislation that grants courts to admit and enforce DNA tests, the courts in this case said that they will enforce Section 114 [more specifically illustration(h)] of the Act[xi], if the Appellant wife refuses to take the DNA test.
Even though there is a tilt towards acknowledging the irrefutable evidence proving/disproving paternity. But at the same time holdings of the Supreme Court in the case of Goutam Kundu vs. State of West Bengal[xii]are still applicable meaning, a strong prima facie case needs to be made even before the husband files for a court order to obtain a blood test. Even after obtaining such an order, there is no strict enforcement or compulsion of the same, the court also examines the consequences on the child and mother.
Moreover, the difference to be considered is that of legal fiction and presumption, the former ‘assumes existence of a fact which may not really exist’[xiii]whereas the latter is a result of the logical inference of circumstances. Denial of admitting DNA tests while determining paternity will be no more than a legal fiction, if Section 112 is not made inclusive. The 185th Law Commission Report[xiv]has also proposed to add DNA testing as an exception along with ‘non-access’, ‘medical tests for impotency’ and ‘blood tests’. To further widen the scope of removing erroneous procedures and reach courts satisfaction on standards for these tests, the report also proposed to use the term ‘conclusively proved’.
India’s hesitant move to inclusion
The U.K on other hand has comparatively developed a scientific temperament early on, when it came to civil family cases on paternity, even though the parties were could not be forced to submit a blood sample, but it had become a practice since the passing of their Family Reforms Act, 1969[xv]. Similar to India, the U.S too has a legal presumption and with the advent of DNA testing, is facing a conflict while making decisions[xvi]. This presumption is ‘subject to common law defences’ and frequently the husband is estopped from denying legitimacy to the child. This equitable estoppel compels husbands to keep paying child support[xvii]even after discovering the truth with accurately reliable evidence from a DNA test.
Comparably in India, a plethora of judicial precedents shows that the law favours the child and protects his legitimacy unless a contrary views arise. While the rights and status of illegitimate children results sometimes in inequality of shares, compensation and insurance[xviii]along with societal ostracization, but such reasons are not adequate to exploit the husband’s rights and put him at a disadvantageous position[xix].
Afterthoughts
Another view of this ‘legitimacy’ trend is that motherhood is made to seem analogous to biological ties, whereas the fathers role is reduced to a legal concept. Such a gendered view[xx]leads to the exclusion of same-sex couples and a growing population of parents who are resorting to surrogacy and adoptions around the country.
For the aforementioned reasons, the author believe that the general rule for legitimacy should be expanded to add universally accepted and scientifically accurate DNA testing as well as extended to include all forms of families while keeping in mind their method of procuring their respective children.
[i]As in shown in the case of C.Thangavel v. P. Vijayalakshmi, (2014) SCC OnLine Mad 8584, the Court states that the law presumes that the marriage in question is valid and every person is legitimate. [ii]See also. MaganlalBudhaibhai Patel vs. Bai Dahi (1971) AIR Guj 33 wherein the court states even exceeding the 280 days period limit is acceptable, if the circumstances and evidence point towards a ‘normal gestation period’. [iii]Caesar Roy, PRESUMPTION AS TO LEGITMACY IN SECTION 112 OF INDIAN EVIDENCE ACT NEEDS TO BE AMENDED , Journal of the Indian Law Institute 54, 382, 383 (2012). [iv]Id. At 385 [v]Kamleshwar Prasad Chankiyal vs. Madhuri Devi. (2008) AIR NOC 1050 [vi]Goutam Kundu vs. State of West Bengal (1993) 3 SCC 418. [vii]See. PadmanavanKesavan vs. Bhargavi (1981) Cr Lj 156 wherein the court states that even if it is proved that the wife was living an adulterous lifestyle, it will not be sufficient to prove ‘non-access’. [viii]Kamti Devi vs. Poshi Ram (2001) 5 SCC 311 [ix]NandlalWasudeoBadwaik vs Lata NandlalBadwaik&Anr. (2014) 2 SCC 576. [x]Dipanwita Roy vs. Ronobroto Roy (2015)1 SCC 365. [xi]The Evidence Act, 1872, Section 114, “Court may presume existence of certain facts - The Court may presume theexistence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” “Illustration (h) - 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.” [xii]Supra note 6. [xiii]Chief justice m. Monir, textbook on law of evidence, 364 (11th ed. 2018). [xiv]Law Commission of India, 185th Report on Review of the Indian Evidence Act, 1872 Part III B 513. [xv]GunjanGupta,CONCLUSIVEPROOFOFLEGITIMACYOFCHILD:SILENTLYWIPINGAGE-OLDLAW–LEGAL ANALYSIS AND JUSTIFICATION (December, 1st, 10:04 PM) http://www.ili.ac.in/pdf/gung.pdf. [xvi]Diane S. Kaplan, Why Truth is Not a Defense in Paternity Actions, Tex. J. Women & L. 10, 69-81, 71 [xvii]Id. At 75 [xviii]Kusum, RIGHTS AND STATUS OF ILLEGITIMATE CHILDREN, Journal of the Indian Law Institute, 40, 295-310, 305 (1998). [xix]Tejas Krishnamurthy, SECTION 112 OF THE INDIAN EVIDENCE ACT AND CONTRARY SCIENTIFIC EVIDENCE, JCIL 3, 1-6, 5 (2019). [xx]Susan Frelich Appleton, PRESUMING WOMEN: REVISITING THE PRESUMPTION OF LEGITIMACY IN THE SAME-SEX COUPLES ERA, Boston Uni. LR 86, 228-293, 237.