Conclusive Proof of Legitimacy under the Evidence Act, 1872Conclusive Proof of Legitimacy under the Evidence Act, 1872

The conclusive proof of legitimacy of a child born during the continuance of a valid marriage is significantly analyzed under section 112 of the Evidence Act (Act No I of 1872). The gravest problem with the section is that it presumes that sexual intercourse is an absolute essential for the conception of a child in a woman’s womb.

When the child is born in lawful wedlock, and the husband is not separated from his wife by divorce, sexual intercourse is presumed to have taken place between wife and husband, until that presumption is encountered by evidence, and the husband would, according to the laws of nature, be the father of his son.

Section 112 of the Evidence Act, 1872 (Act No I of 1872) of two parts, and according to this section, the fact that any person was born:

1. During the continuance of a valid marriage between his mother and any man; and2. Within 280 (two hundred and eighty days) (gestation period) after its dissolution,

the mother remaining unmarried shall be conclusive proof that he is the legitimate son of that man, unless the parties had no access to each other, at any time when he could have been begotten.

- This section refers to the point of time of the birth of the child as the deciding factor, and not to the time of conception of that child;

- The latter point of time has to be considered only to see whether the husband had no access to the mother.

Presumption as to the parenthood of a child –

If a person wants to prove that he is not the father of a child he must establish that he had no access to the wife. Once it is proved that he had access to his wife, the fact that his wife was a woman of bad character and that she was accessible to other people too is no ground to hold that the child born during the continuance of marriage, or within 280 days after the dissolution of marriage is not that person's child. (Taza Gul 1 P. C. R. 97)

Under the section, a child born in wedlock should be treated as the child of the father who was at the time of its birth, the husband of the mother, unless it is shown that he had no access to the mother at the time of its conception, irrespective of the question whether the mother was married or not at the time of the conception.

The presumption as to paternity in this section arises only in connection with the offspring of a married couple. The section applies to the legitimacy of the children of -

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married persons only. On the birth of a child during marriage, the presumption of legitimacy is conclusive.

DNA Test –

The DNA test cannot rebut the conclusive presumption under section 112 of the Evidence Act, 1872 (Act No. 1 of 1862). The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof. (Shaik Fakruddin v. Shaik Mohammed Hasan, AIR 2006 AP 48)

Presumption of Legitimacy –

Child born within 280 days of dissolution of marriage or during continuation of marriage, it shall be presumed as legitimate, unless no access proved by husband. (Taza Gul PLD 1951 Peshawar 17)

Woman living with Paramour –

If a person wants to prove that his woman living with paramour, no proof of “non access” made by husband, it shall be deemed/presumed as Legitimacy.

Legitimacy under Hindu law and Muslim law

The Hindu law and Mohammedan Law raise similar presumptions as stated in the section, regarding legitimacy, but while English Law gives importance to the time of birth, Hindu law and Mohammedan law give importance to the time of conception.

Case References:

1. Chandramathi v. Pazhetti Balan, AIR. 1982 Ker. 68

In this case, it was decided by the Kerala High Court, the facts were interesting: A wife had become pregnant after her husband had undergone a vasectomy operation. The husband alleged that she had conceived because of illicit intercourse, and claimed to be entitled to a decree for divorce on this ground.

The success of the operation was not proved before the Court. Nor was any case made out by the husband that he had no sexual intercourse with the wife during the period

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when she could have conceived. Also, the allegation of illicit relations was not repeated by the husband on oath when in the witness box.

Taking all these circumstances into consideration, the Court held that the presumption would be that the husband was the father of the child. No decree for divorce was, therefore, passed in his favour.

2. Tushar Roy v. Sukla Roy, 1993, Cri. L.J. 1659

The Calcutta High Court has held that the paternity of a child born during lawful wedlock cannot be decided by a blood group test, in view of the provisions of section 112 of the Evidence Act, 1872 (Act No. I of 1872)

3. Russell v. Russell (1924 A.C. 687)

It has been laid down that neither the declarations of the wife, nor her testimony that the child was the child of a man other than her husband are admissible, nor of the husband that he was not the father of the child.

The Allahabad High Court has held that the English rule that such evidence is inadmissible because it is evidence which tends to bastardize the child is not applicable to the Courts in India; there is nothing in the Evidence Act which renders this evidence inadmissible.

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