presumption of legitamacy

7/28/2019 Presumption of Legitamacy

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PRESUMPTION OF LEGITIMACY.PRESUMPTION OF LEGITIMACY.

PROJECT SUBMITTED BY

Srinivas Atreya, 519.

Deepika S, 520.Fatima Nadackal, 521.

Gaurav Singh, 522.

Harveen Dhillon, 523.

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INDEX

LEGAL PRESUMPTIONS 3

PRESUMPTION OF LEGITIMACY 3

NEED AND CONDITIONS FOR PRESUMPTIONS OF LEGITIMACY 3

EVIDENCE FOR REBUTTAL OF THE PRESUMPTION 4

PRESUMPTION OF LEGITIMACY UNDER COMMON LAW 4

PRESUMPTION OF LEGITIMACY IN INDIA 4

IMPORTANT CASES 6

RECOMMENDATIONS OF MALIMATH COMMITTEE 8

REFORMS REQUIRED 9

CONCLUSION 9

REFERENCE 10

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PRESUMPTION OF LEGITIMACY.PRESUMPTION OF LEGITIMACY.

LEGAL PRESUMPTIONS: -LEGAL PRESUMPTIONS: - A fact which is assumed to be true under the law is

called a presumption i.e. the court will assume a fact to be true until it is rebutted by a

greater preponderance of evidence against it.

PRESUMPTION OF LEGITIMACY: -PRESUMPTION OF LEGITIMACY: - According to this presumption, a child born to

a married couple is presumed to be their legitimate offspring in the absence of a clear

demonstration that the husband could not possibly be the father i.e. a child born of a

husband and wife living together is presumed to be the natural child of the husband.This presumption is based on the principle, Odiosa et inhonesta non sunt in lege

prae sumenda', which means nothing odious or dishonourable will be presumed by

the law. Another principle which is in favour of the presumption of legitimacy is,

'Pater est quem nuptioe demonstrant which means he is the father whom the

marriage indicates. This presumption of legitimacy is also known as the Lord

Mansfields rule who articulated it for the sake of decency, morality and policy.

NEED FOR PRESUMPTION OF LEGITIMACY: -NEED FOR PRESUMPTION OF LEGITIMACY: - Legislatures across the world

have accepted the legitimacy presumption to protect the institution of family and to

secure the future of the child. The presumption of legitimacy is primarily a common

law principle and it had severe restrictions on the rebuttal of this presumption, the

main reason being an aversion to declaring children illegitimate, thereby depriving

them of the rights of inheritance and succession. Another reason was to protect the

peace and stability of families, which could not be possible if partners start suing

each other stating that the child is illegitimate.

CONDITIONS FOR PRESUMPTION OF LEGITIMACY: -CONDITIONS FOR PRESUMPTION OF LEGITIMACY: - The following

conditions are required for the presumption of legitimacy to hold good.

1) The child should be born of or conceived out of a lawful wedlock.

2) There should be absence of sufficient evidence to the contrary.

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EVIDENCE FOR REBUTTAL OF THE PRESUMPTION: -EVIDENCE FOR REBUTTAL OF THE PRESUMPTION: - The evidence for

rebuttal maybe the evidence of non access, husbands impotence, the uses of any

other precaution to avoid the possibility of a child or the results of a DNA test.

PRESUMPTION OF LEGITIMACY UNDER COMMON LAW: -PRESUMPTION OF LEGITIMACY UNDER COMMON LAW: - The presumption

of legitimacy is a very strong presumption under the common law and very severe and

strict restrictions were placed for the rebuttal of this presumption. This presumption is

not even rebuttable by the declaration of the husband or the wife stating that the child

is illegitimate1. Also the doctrine of equitable parent is a reflection of the common law

tradition which is strongly in favour of the presumption of legitimacy. According to

this doctrine, a husband who is not the biological father of the child conceived or born

during the marriage maybe a legal father, if the husband and child mutually

acknowledge a father-child relationship or the mother helps develop such a

relationship, or if the husband is willing to take the responsibility of paying child

support and therefore desires the rights afforded to a parent2. But once this

presumption is rebutted, the child in question loses all his rights of inheritance and

succession. A child was considered to be illegitimate under common law if the parents

were not married to each other at the time of the childs birth even though they got

married later. This presumption was also rebuttable upon the proof that the husband

was either physically incapable of impregnating or was absent at the time of

conception. If any of these conditions are proved, the child would be declared

illegitimate and he would lose his rights of inheritance and succession. In this regard,

the common law is considered to be a little backward as modern law has given more

rights for the non marital child.

PRESUMPTION OF LEGITIMACY IN INDIA: -PRESUMPTION OF LEGITIMACY IN INDIA: - The legitimacy presumption is a

legally valid presumption in India. This principle can be found in Section 112 of the

Indian Evidence Act which states that,

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

1 Russell V Russell.2 Michael H case, U.S Supreme Court.

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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.

This section highlights the common law principle that the child born out of lawful

wedlock is presumed to be legitimate unless it can be shown that the parties to the

marriage had no access to each other. Thus, in the Indian scenario, only non access

can be a relevant evidence for rebuttal of the presumption.

The results of a DNA test, though used as evidence by many courts under Section 45

of the Indian Evidence Act3, is not yet a conclusive proof under Section 1124 or under

any of the legislations enacted. Section 112 refers to non access as the sole exception.

Therefore, as the language of the section stands, no other evidence is permissible

except non access, to prove that a person is not the father5.

In the year 2003, The Indian Evidence (Amendment) Bill was proposed on the

recommendation of the 185th Law Commission Report. This Bill provides for DNA

tests in paternity disputes.

Under the proposed Bill, Section 112 of the Indian Evidence Act would read as under:

Birth during marriage conclusive proof of legitimacy except incertain cases

112 The fact that any child was born during the continuance of avalid marriage between its mother and any man, or within two hundredand eighty days,

(i) after the marriage was declared nullity, the mother remainingunmarried, or

3Opinion of Experts: -When the Court has to form an opinion upon a point of foreign law, or ofscience, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of

persons specially skilled in such foreign law, science or art, or in questions as to identity of handwritingor finger impressions, are relevant facts. Such persons are called experts.

4 Shaik Fakruddin V Shaik Mohammed Hasan.5 Kanti Devi Vs Poshi Ram, Supreme Court of India.

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(ii) after the marriage was avoided by dissolution, the motherremaining unmarried,

shall be conclusive proof that such person is the legitimate child of thatman, unless

(a) it can be shown that the parties to the marriage had no access to

each other at any time when the child could have been begotten; or

(b) it is conclusively established, by tests conducted at the expense of

that man, namely,

(i) medical tests, that, at the relevant time, that man wasimpotent or sterile, and is not the father of the child; or

(ii) blood tests conducted with the consent of that man and his

wife and in the case of the child, by permission of the

Court, that that man is not the father of the child; or

(iii) DNA genetic printing tests conducted with the consent of

that man and in the case of the child, by permission of the

Court, that that man is not the father of the child; and

Provided that the Court is satisfied that the test under sub-clause (i) or

sub-clause (ii) or sub-clause (iii) has been conducted in a scientific

manner according to accepted procedures, and in the case of each of

these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have

been conducted, and they resulted in an identical verdict that that man

is not the father of the child.

Provided further that where that man refuses to undergo the tests

under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the

provisions of clause (a), be deemed to have waived his defence to any

claim of paternity made against him.

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But this Bill has not yet been passed and hence DNA tests still do not have the

necessary legislative backing.

IMPORTANT CASES: -IMPORTANT CASES: - Time and again there have been cases where the question of

relevance of blood tests and DNA tests to determine the paternity of the child has

arisen. There have been different decisions given based on circumstances.

In the case of Sharda V Dharmpal, the question was whether a party to a divorce

proceeding can be compelled to undergo a medical examination. Here an order for a

DNA test was opposed by the respondent on the grounds that it would violate his

Right to Privacy under Article 21 of the Constitution. The Supreme Court in this case

rejected the respondents claim and held that in spite of an order passed by a Court, a

person refuses himself to submit to such medical examination, a strong case for

drawing adverse inference would be made out6. It was also held that there is nothing

brutal or offensive or shocking in taking the blood sample for DNA test under the

protective eyes of law. But in the case

of Ningamma V Chikkiah, it was held that the testing of the blood groups violates

Article 21 of the Constitution.

In Mrs. Kanchan Bedi and Anr. V. Shri Gurpreet Singh Bedi, the parentage of the

infant was in question, and the application filed by the mother for conducting DNA

test was vehemently opposed by the father contending that it would violate his rights.

This was a case for grant of maintenance and it was held that if the parties willing to

submit themselves to the DNA test, it wont be a violation of rights.

In the cases of Gautam Kundu V State of West Bengal and Tushar Roy V Sulka Roy,

it was held that DNA tests or any kind of medical examination for determining

thepaternity of the child is not permissibu8i78ile. Both these cases were claims for

maintenance. A similar judgement was observed by the Supreme Court in the case of

Ramkanya Bai V Bharatram.

6 Section 114 of the Indian Evidence Act enables a Court to draw adverse inference if the party doesnot produce the relevant evidences in his power and possession.

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From the above decisions, it is clear that there is no standard rule which is applicable

to the question of DNA tests to determine the paternity of a child.

However, the case of Gautam Kundu V State of West Bengal is considered to be a

standard case law as it has laid down exhaustive procedures relating to the validity of

DNA tests and their admissibility to prove parentage.

The following observations are very important and are generally referred to regarding

such cases: -

(1) That courts in India cannot order blood test as a matter of course;

(2) Wherever applications are made for such prayers in order to have roving inquiry,

the prayer for blood test cannot be entertained.

(3) 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.

(4) 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.

(5) No one can be compelled to give sample of blood for analysis.

Further the court said Blood-grouping test is a useful test to determine the question of

disputed paternity. It can be relied upon by courts as a circumstantial evidence, which

ultimately excludes a certain individual as a father of the child. However, it requires

to be carefully noted no person can be compelled to give sample of blood for analysis

against his/her will and no adverse inference can be drawn against him/her for this

refusal.

RECOMMENDATIONS OF MALIMATH COMMITTEE: -RECOMMENDATIONS OF MALIMATH COMMITTEE: -

Apart from this, general guidelines have also been provided by the Malimath

Committee Report,

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1. Sec. 313 of the CR.P.C, which deals with the power of the court to examine the

accused, must be amended so as to draw adverse inference against the accused if

he fails to answer any relevant material against him therefore, making it easy for

the law enforcers to use DNA tests against him.

2. A specific law should be enacted giving guidelines to the police setting uniform

standards for obtaining genetic information and creating adequate safeguards to

prevent misuse of the same.

3. A national DNA database should be created which will be immensely helpful in

the fight against terrorism.

4. More well-equipped laboratories should be established to handle DNA samples

and evidence.

5. Efforts should be taken to create more awareness among general public,

Prosecutors, judges and police machinery.

REFORMS REQUIRED: -REFORMS REQUIRED: - The 185th Law Commission Report, the findings of the

Malimath Committee and the principles evolved in various case laws in the courts

have to be considered by the Legislature. It is very important for the legislature to

either amend Section 112 of the Indian Evidence Act so as to make DNA tests

permissible or to pass a separate statute dealing with the validity of DNA tests

regarding the issue of child paternity. Without a positive intervention from the

legislature, these issues will be shrouded with doubt.

CONCLUSION: -CONCLUSION: - The presumption of legitimacy is an important presumption for the

social setup prevalent in India. But, it is equally important to take into account the

changing social trends and the changing nature of marital relationships and thereby

incorporating new provisions to accommodate these changes. With the increase in

cases of divorce and maintenance being filed, it becomes important to have DNA tests

a valid proof for or against the parenthood of a child.

The new amendments or statutes should be in the best interest of both the child and

the couple. The consequences of a DNA test must be analysed carefully and safety

measures should also be meted out in cases of the child turning out to be illegitimate.

The Legislature should also look into the question of DNA tests being violative of

Article 21 of the Constitution and it should come up with safeguards to protect the

Right to Personal Liberty.

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The relevance of DNA tests in paternity issues is increasing in todays world and it is

high time that we come up with a separate legislation dealing with it.

REFERENCEREFERENCE

The Modern Law of Evidence by Adrian Keane.The Modern Law of Evidence by Adrian Keane.

Universals Criminal Law Manual.Universals Criminal Law Manual.

thefreeldictionary.comthefreeldictionary.com

The website of LSU Law CenterThe website of LSU Law Center

legalserviceindia.comlegalserviceindia.com

Article on Legitimacy by Oxford University Comparative Law Forum (OUCLF)Article on Legitimacy by Oxford University Comparative Law Forum (OUCLF)

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