Overview: ANALYSIS OF SECTION 112, THE INDIAN EVIDENCE ACT, 1872

Profile of the Author: Bhawna Pawar, student of Dr. B. R. Ambedkar National Law University, Sonipat, pursuing B.A. LL.B (Hons.) 2nd year, having areas of interest in constitutional law, civil law and criminal law.

INTRODUCTION

Section 112 of Indian Evidence Act, 1872- 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 [1].

The legislative spirit behind this section seeks to establish that any child born during the continuation of valid marriage between his mother and any man must be legitimate. The law does not presume any dishonorable, misconduct or immoral actions unless some strong, clear and conclusive proof can be produced for the same. Therefore, section 112 is based on the presumption of public morality and public policy.

Sham Lal v. Sanjeev Kumar [2]

When the validity or continuance of marriage is proved, there are strong presumptions made about the legitimacy of children born from that wedlock. The presumption can only be rebutted by strong, clear, satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. Even the evidence of adultery by wife which although proves to be the strongest evidence, they, in themselves, are not quite sufficient to repel this presumption and will not justify illegitimacy if husband had access. In the instant case, admittedly the plaintiff and Defendant 4 were born to D during the continuance of her valid marriage with B. Their marriage was in fact never dissolved. There is no evidence on record that B at any point of time did not have access to D.

It is undesirable to enquire about paternity of a child whose parents "have access" to each other or were in continuance marriage with each other. Section 112 of the Evidence Act, 1872 upholds public interest, public morality and public policy. The section is based on well-settled principle of law “odiosa et inhonesta non sunt in lege praesumenda” (nothing odious or dishonorable will be presumed by the law). Section 112 reproduces the rule of English Law which states that it is undesirable to enquire about the paternity of a child when the mother is a married woman and the husband had access to her. The law presumes against vice and immorality. In a civilized society, it is imperative to presume about the legitimacy of a child born during continuation of a valid marriage and whose parents had "access" to each other.

CONCLUSIVE PROOF – PRESUMPTION UNDER SECTION 112

Presumption means to accept something as true when there is no evidence to the contrary. It has been derived from Latin word ‘praesumere’ referring to an inference or an affirmation of the truthfulness or falsehood of a proposition or a fact.

The standard of proof under section 112 is conclusive proof which means that the court does not have the discretion to raise presumption instead it’s a compulsion. The court shall on proof of one fact regard the other fact as proved and the court will not allow giving evidence to rebut or disprove it[3]. The other presumptions mentioned in Section 4 of the Evidence Act, 1872, namely, ‘may presume’ and ‘shall presume’ are rebuttable presumptions. Conclusive proof is irrebuttable presumption.

Therefore, no evidence can be permitted to be let in to disprove the conclusive presumption. On the other hand, it appears to be correct view that the operation of the conclusive presumption can be avoided by proving non-access at the relevant time. Then the conclusive presumption will not be raised[4]. At this point the burden of proof lies on the party who raised the claims about illegitimacy[5].

DNA TEST

DNA Tests are conclusive evidence that is admissible under the Indian Legal System to ascertain paternity. The introduction of DNA technology has faced a lot of criticism and it has been mentioned before about it being violative to Article 21 (Right to Privacy) and Article 20(3) (Right against Self-Incrimination) of the Indian Constitution.

ARTICLE 21– RIGHT TO PRIVACY

Govind Singh v. State of Madhya Pradesh [6]

In this case, the Supreme Court held that a fundamental right must be subject to restriction on the basis of compelling public interest. Thus, Right to Life and Liberty, which includes Privacy, is not absolute. And it is on this basis that the constitutionality of the laws affecting Right to Life and Personal Liberty are upheld by the Supreme Court which includes medical examination.

Sharda v. Dharmpal [7]

In this case the court held that (a) A matrimonial court has the power to ask a person to submit to the medical test reports and this order of the Court will not violate a person’s Right to Personal Liberty that comes under Article 21 of the Indian Constitution further it said that the Court must exercise this power only if the applicant has a strong prima facie case and there is sufficient proof before the Court. The Court also stated that if the respondent does not submit himself for the conduction of medical examination, despite the order of the Court. The court will be entitled to draw an adverse inference against him.

Thus, the Court has the authority to direct a person to undergo medical tests. However, according to section 112 of the Act, the Court can only give such orders if non-access is proved.

ARTICLE 20(3) – RIGHT AGAINST SELF-INCRIMINATION

State of Bombay v. Kathi Kalu Oghad [8]

In the following case it was held that “Self-Incrimination means conveying information based upon personal knowledge of the person giving the information and it cannot include the mechanical process of producing documents in court as right against self-incrimination which do not contain any statement of the accused based on his personal knowledge”. Since medical tests which involve giving blood do not involve any exchange of ‘personal’ knowledge and are a mechanical process, they do not violate Article 20(3) unless compulsion was used in obtaining.

CONCLUSION

Section 112 is based upon presumption of public morality and public policy. The rule of presumed legitimacy as mentioned in this section is rather founded in decency, morality and policy. Conclusive presumption can only be dispelled by proving the non-access of the parties, and that not-access cannot be proved on mere balance of probabilities but by providing strong preponderance of evidence. There is no other evidence that is admissible to rebut this conclusive presumption. The presumption is in favor of legitimacy and against bastardy. The provision under this section applies only to the lawful marriage.

[1] THE INDIAN EVIDENCE ACT, 1872 s 112

[2] Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454

[3] THE INDIAN EVIDENCE ACT, 1872 s 4

[4] Kamti Devi v. Posh Ram, AIR 2001 SC 2226

[5] Chiluturi Venkateswarlu v. Chilukuri Narayana, 1954 AIR 176

[6] Govind Singh v. State of Madhya Pradesh, 1975 AIR 1378

[7] Sharda v. Dharmpal, (2003) 4 SCC 493

[8] State of Bombay v. Kathi Kalu Oghad, 1962 SCR (3) 10

FREQUENTLY ASKED QUESTIONS (FAQs)

Q 1: How can standard of presumption be rebutted?

The standard of presumption is conclusive proof which can be rebutted only by proving the non-access of the parties. Non-access should be effective and should not be enough to give an opportunity of having intercourse.

Q 2: How can non-access be proved?

The proof of non-access is based on a strong prima facie evidence founded on a strong preponderance of evidence and not merely on the balance of probabilities. No other evidence, including DNA profiling, is sufficient to rebut the presumption until and unless non-access is proved.

The author undertakes that the work submitted is an original creation of the author. The author has not previously submitted the article for the purpose of publication. Any similarity with a previously published content is not intentional. The author shall be personally liable for any infringement of intellectual property of any person, organization, government or institution.