| introduction | jurisprudence |
| sections | section 112 |
| relevant case laws | Gautam Kundu vs st. Of WB Dipanwita Roy vs Ronobroto Roy |
| present problem | Questions related |
| conclusion | answers as per our reasoning |
Rule of law shall draw particular inference from particular fact or evidence truth of presumption is disproved. It is assumption of truth of fact drawn from other proved facts. It is generally means taking true without examination of facts. It is an inference of facts drawn from proved facts.
Presumption makes prima facie case for a party for whose benefit it exists until his opponent introduces evidence to rebut presumption. It tells the person on whom burden of proof lies.
Presumption is of 3 types under section 4:
May presume– Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
Shall presume – Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
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.
Section 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.
- It is irrebutable presumption of law which can only be rebutted by proving non-access of parties.
Access and Non- access means existence and non existence of sexual intercourse, it does not mean actual cohabitation. Maxim — “paster est quem nuptioe demonstrant “, it means that he is the father whom marriage indicates. Thus evidence that a child is born during wedlock is sufficient to establish its legitimacy. The intention is to lean legitimacy and not bastardity.
Essentials:
- Child is born — during marriage or within 280 days after dissolution
- Mother should remain unmarried during that period
- Must have Access with each other
- Conclusive proof of legitimacy of child
- If not, then prove Non-access
Need:
- Succession depends on paternity
- Surname
- Maintenance
Legality of DNA test at present scenario:
It is unjust to brand a child as bastard but equally unjust to foist paternity on man who by all reason could not have been father of child.
DNA technology has been criticized too under various scenarios as it is said to be in violation of several fundamental rights of the individual such as the Right to Privacy under Article 21 and the Right against self incrimination under Article 20(3) of the Constitution of India.
In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women[6], the apex court observed that the right to privacy of an individual is breached through the DNA test and hence it should not be allowed as a usual course of action. It reiterated the fact that there must be some strong prima facie evidence in order to allow the admissibility of DNA testing as an evidential record or to have it as conclusive proof.
It is only recently in the case of Malappa @ Malingaraya v. State of Karnataka[8] that the purpose of DNA test, in order to identify paternity, is not a violation of the right against self-incrimination. The simple reasoning behind the decision was that the self-incrimination right is applicable only to testimonial evidence in India and not the material or scientific evidence.
DNA tests of children born during the subsistence of a valid marriage may be directed, only when there is sufficient prima-facie material to dislodge the presumption under Section 112 of the Evidence Act.
Relevant Case laws:
Goutam Kundu vs State of West Bengal
facts:
Goutam Kundu married to second respondent (name of wife is not mentioned in judgment) on 16th January, 1990. They lived together for some time until his wife left the matrimonial home to reside with her parents to prepare for Higher Secondary Examination which commenced on April 5,1990. In month of April, she had shared that she is pregnant. Husband and his family members started to force her for abortion. But she denied. She came back to the matrimonial home during Durga Pooja in the month of October, 1990. A female child was born on January 3, 1991. She was meted out cruel treatment both physically and mentally. She filed a petition for maintenance under Section 125 of the CrPC for her and her child. Court granted that. Husband filed a petition for blood test of his wife and the child in Calcutta High Court. He challenged paternity of daughter. According to him if she is not his child, he would not be liable to pay maintenance. The High Court dismissed the Petition. Husband filed Appeal to the Supreme Court against the decision of High Court.
The petitioner disputed the paternity of the child and prayed for a blood group test of the child to prove that he was not the father of the child. According to him, if he could prove the illegitimacy of the child, he would not be liable to pay for the maintenance.
issue:
Whether ‘Blood Group Test’ should be allowed to prove or disprove paternity? If yes, inwhat circumstances?
judgement:
Under English Law, Courts can give directions for the use of the blood test and takingblood samples from the child, the mother and any person alleged to be the father.However, it is to be stated the court cannot order a person to submit to tests if he/she isnot willing, but can draw adverse inferences from a refusal to do so.In India there is no special statute governing this. Neither the Criminal Procedure Codenor the Evidence Act empowers the court to direct such a test to be made.The English law permitting blood test for determining the paternity of legitimacy couldnot be applied in view of Section 112 of the Evidence Act.Blood grouping test is a useful test to determine the question of disputed paternity. It canbe relied upon by courts as a circumstantial evidence which ultimately excludes a certainindividual as a father of the child. However, it requires to be carefully noted no personcan be compelled to give sample of blood for analysis against her will and no adverseinference can be drawn against her for this refusal.Purpose of the application is nothing more than to avoid payment of maintenance,without making any ground whatever to have recourse to the test.Section 112 is based on the well-known maxim “pater est quem nuptioe demonstrant” which means he is the father whom the marriage indicates.The presumption of legitimacy is this, that a child born of a married woman is deemed tobe legitimate, it throws on the person who is interested in making out the illegitimacy, thewhole burden of proving it.It is a rebuttable presumption of law that a child born during the lawful wedlock islegitimate, and that access occurred between the parents. This presumption can only bedisplaced by a strong preponderance of evidence, and not by a mere balance ofprobabilities.Section 112 requires the party disputing the paternity to prove non-access in order todispel the presumption. ‘Access’ and ‘non-access’ mean the existence or non-existence ofopportunities for sexual intercourse; it does not mean actual cohabitation.The court must carefully examine as to what would be the consequence of ordering theblood test; whether it will have the effect of branding a child as a bastard and the motheras an unchaste woman.
We find no difficulty in upholding the impugned order of the High Court, confirming the order of the Addl. Chief Judicial Magistrate, Alipore in rejecting the application for blood test.The Court said that the motivation behind the application is just to stay away from the installment of the maintenance with no grounds. Likewise, the Criminal appeal was also dismissed.
Dipanwita Roy vs Ronobroto Roy
facts:
The petitioner-wife Dipanwita Roy and the respondent-husband Ronobroto Roy, were married at Calcutta in January, 2003. The present controversy emerges from a petition filed under Section 13 of the HMA, 1955 by the respondent, inter alia, seeking dissolution of the marriage. Since, 2007 the petitioner never lived with the respondent and did not share bed at all. On a very few occasions since then the respondent came to the petitioner’s place of residence to collect her things and lived there against the will, to avoid public scandal. She was leading a fast life and has lived in extra marital relationship with the said Mr. Deven Shah and the petitioner had given birth to a son. Husband denied this allegation. Husband moved an application in July 2011, seeking a DNA test of himself and the child. She asserted, that she had continuous matrimonial relationship with husband, and that, husband had factually performed all the matrimonial obligations with her, and had factually cohabited with her. The petitioner-wife accordingly sought the dismissal of the application filed by the husband, for a DNA test of himself and the male child born to wife. The Family Court dismissed the prayer made by the husband. Calcutta High Court directed for DNA Test on the request of Ronobroto Roy.
issue:
Whether Court can pass order for DNA Test?
judgement:
Once the validity of 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. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt. Even the evidence of adultery by wife which though amounts to very strong evidence, it, by itself, is not quite sufficient to repel this presumption and will not justify finding of illegitimacy if husband has had access. In a matter where paternity of a child is an issue before the court, the use of DNA test is an extremely delicate and sensitive aspect.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. 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 test is eminently needed. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. Supreme Court held that order passed by the High Court for DNA Test is correct. But this order was modified and two options were given for wife regarding DNA Test: → In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively dispute regarding paternity. → In second option, if she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. This will protect right to privacy without sacrifice cause of justice.
The SC held that the husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, the Court cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary.The SC upheld the order of HC.
Present Problems:
Geeta was married to Shyam in June 1990. Shyam died in July 1992. She then married another man (K) in September 1992 and gave birth to a son in September 1992. Can it be lawfully claimed that the son is the legitimate son of K? Discuss.
Answer : Child born to Geeta after the second marriage is said to be legitimate child of K as per section 112, otherwise K have to prove non access.
Ira got divorced from Manas on 31/12/21 and married Abhinav on 1/3/22. Ira delivered a child on 30/4/22. Abhinav disputes the paternity of child on the basis that child was conceived during the subsistence of first marriage and therefore Manas is father. Advise Manas for existing law.
Answer : The child born is legitimate of Abhinav as Ira got married to him during her pregnancy period, if Abhinav disputes the paternity, then he has to prove non-access.
