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Introduction:
The term presumption in its
large and most comprehensive sense, may be
defined as an inference affirmative or disaffermative of truth or
falsehood of a doubtful fact or proposition drawn by a process of
probable reasoning from something proved or taken to be granted.
The
burden of proof deals with presumption. It is an inference that
the
court is directed to draw from certain facts of certain cases. It
can
also be said that the proof of certain facts, the law will
sometimes
infer the existence of another fact that need to be expressly
proved.
There are four kinds of presumption. They are:
1. Presumption of fact
2. Presumption of law
3. Irrebutable presumption
4. Rebbutable presumption
Presumption of fact
Presumptions of fact are also known as natural presumption. These
are
inferences that are naturally and logically drawn from experiences
and
observation from the course of nature, the constitution of human
mind,
the springs of human action and the habits of the society.
Presumption of law
When law with the quality of a rule that directs them vests
presumption
of fact how they must be drawn.
Irrebutable presumption
A pressumtion that cannot be overcome by any additional evidence
or
argument. It is known as a conclusive presumption. An example of
this
type of presumption is the child under the age of seven years is
not
capable of committing felony.
Rebbutable presumption
These are certain presumption that are regarded as something more
that
mere maxims. It is not easy to say to what extent. A much familiar
instance of this is that a person who is in possession of stolen
goods
is either a thief or a receiver
Matrimonial offences are those offences that take place in the
matrimonial house of a woman. The matrimonial home is the
household a
woman shares with her husband; whether it is rented, officially
provided, or owned by the husband or his relatives. A woman has
the
right to remain in the matrimonial home along with her husband as
long
as she is married, though there is no definite law regarding this
right.
There are different types of matrimonial offences like dowry
death,
illegitimacy of the child, adultery. But there are presumptions
relating
to only some of the offences.
Presumption is very necessary in matrimonial offences.
Presumptions are
very essential in matrimonial offences because it is difficult to
get
evidence. There are three main provisions regarding the
presumption in
context of matrimonial offences.
1. Presumption as to abetment of suicide by a married woman which
is
dealt in section 113A of Indian Evidence Act
2. Presumption as to dowry death which is dealt in 113B of Indian
Evidence Act
3. Birth during marriage conclusive proof of legitimacy dealt in
section
112 of the Indian Evidence Act
Abetment Of Suicide By A Married Woman
The Indian Evidence Act section 113A deals with the presumption as
to
the abetment of suicide by a married woman. Section 113A states
that:
Presumption of abetment of suicide by a married woman. -When the
question is whether the commission of suicide by a woman had been
abetted by her husband or any relative of her husband and it is
shown
that she had committed suicide within a period of seven years from
the
date of her marriage and that her husband and such relative of her
husband had subjected her to cruelty, the curt may presume, having
regard to all other circumstances of the case, that such suicide
had
been abetted by her husband or by any such relative of her husband
Explanation- For the purpose of this section, cruelty shall
have same
meaning as in section 498A of the Indian Penal Code
The term cruelty shall mean the same as defined in 498A section of
India
Penal Code according to this:
Cruelty means-
(a) Any willful conduct which is of such a nature as is likely to
drive
the woman to commit suicide or to cause grave injury or danger to
life,
limb or health (whether mental or physical) of the woman; or
(b) Harassment of the woman where such harassment is with a view
to
coercing her or any person related to her to meet any unlawful
demand
for any property or valuable security or is on account of failure
by her
or any such person related to her to meet such demand.
The section 113A was inserted by Criminal Law (second amendment)
Act 46
of 1983. This was introduced because there was increasing number
of
dowry death, which was in fact a matter of serious concern. This
evil
was commented upon the Joint Committee of the House to examine the
work
of Dowry Prohibition Act, 1961. the cases of cruelty by the
husband or
relative of husband which would result in suicide or murder only
constituted a small fraction. In order to move this difficulty it
was
proposed to amend Indian Penal Code, Indian Evidence Act and
Criminal
Procedure Code that could efficiently deal with the cases of dowry
death
as well as cruelty to married woman by her husband or his
relatives.
This amendment was necessitated to meet the changing social
conditions,
which would save the married woman from the clutches of husband or
her
in-laws generally demanding more dowry. If she refused to bring
more
dowry she was maltreated within the four walls of her house. As
the
woman's parental home was far away from the matrimonial one the
prosecution had a little chance for getting evidence in favor of
them.
Retrospective effect
The section 113A of the Indian Evidence Act has an retrospective
effect.
It applies to all pending action irrespective of the fact that
when the
offence was committed. This can apply to the offence relating to
the
abetment of suicide even if the incident took place before the act
coming into force i.e. before 1983 by an married woman. In the case of
Harikumar v State of Karnataka the court has said
that
by a plain reading of the provision it permits to draw the
instances of
cruelty even to prior to the date of concealment of this
provision. The
legal provision provided that under this section clearly concludes
the
past instances of cruelty spread over a period of seven years from
the
date of marriage the victim. Therefore it is permissible to the
court to
inquire into a case and look into the past conduct prior to the
commencement date of the amending provision.
In another case,
Gurubachan v Saptal Singh the Supreme Court has
held
that s113A does not create any new offence, nor does it create any
substantial right, but it is merely a matter of procedure and its
retrospective operation will apply to the offence committed prior
to the
insertion of s113A of the Indian Evidence Act.
The beauty of law is that if a person wants to get some remedy
done
through the court he has to prove the existence of certain factual
situation. In the same way in order to attract the provision of
s113A of
the Indian Evidence Act the burden of proving the fact lies on the
person who affirms it. This principle of burden of proof is
applicable
to all matrimonial offences. For attracting the provision of 113A
the
following things has to be proved.
1. Suicide must be committed by a married woman
2. Suicide must have been abetted by husband or any relative of
her
husband
3. Suicide must be committed with in seven years of the marriage
4. She must have been subjected to cruelty (as defined in 498A of
Indian
Penal Code) by her husband.
Presumption under section l13A refers to one of the three
ingredients of
abetment as defined in section 107 IPC i.e. instigation,
conspiracy and
intentional aiding of the act. Where conduct of the accused
indicated
that he did not want her to die even though he might have treated
her
cruelly earlier, it cannot be presumed that he abetted the
suicide.
The first requisite for attracting this section is that it should
be
proved that the wife was subjected to cruelty as defined in 498A
of
Indian Penal Code. 'Cruelty' does not embrace acts of physical
torture
alone. When the evidence shows that the scolding, which the victim
received from her mother-in-law, made her commit suicide, it will
have
to be construed as a willful conduct of mother-in-law. It should
be
assumed that such a nature as had driven the victim to commit
suicide.
The case is covered by Explanation (a) to s 498A, Indian Penal
Code and
presumption under s 113A of the Evidence Act can be raised. Acts
of
cruelty are invariably committed within the four walls of a house
and
naturally, eyewitnesses to such incidents are not easily
available. The
meaning of 'cruelty' as assigned in s 498A of the Indian Penal
Code has
to be imported in s 113A of the Indian Evidence Act while deciding
whether he victim has been subjected to any cruelty or not. In the
under
mentioned case , a newly wedded girl died in burn injuries. Their
in-laws accused the deceased of carrying an illegitimate child.
Besides,
the sisters and father of the deceased gave evidence that the she
was
tortured for bringing insufficient dowry and there was delay in
giving
medical aid to the deceased. Information about the incident was
also
conveyed to the father after a delay. The Supreme Court held that
the
deceased had committed suicide by he instigation of her husband
and
in-laws and presumption under 113A can be raised.
In order to attract this provision the proof of all the four
ingredients
must be there. The prosecution must prove that her husband or her
in-laws have meted out cruelty to the victim. In
Chhagan Singh v
State
of Madhya Pradesh the accused beat the victim in the house of
third
person for stealing rice. Victim committed suicide within four
days of
that incident. There was no evidence to show that she was
subjected to
cruelty. The court acquitted the accused.
If there is proof of cruelty and harassment soon before the death
of the
victim, then the presumption can be raised under s113A and 113B of
the
Indian Evidence Act. In the case of murder the legal presumption
of 113A
is not attracted. This is also not attracted in the case where the
death of a woman is due to other reason. The presumption can only
be raised if the husband or any relative of her husband has treated the woman
with
cruelty by demanding more dowry. In the case of Ved prakash v
State of
Madhya Pradesh the accused intimidated the deceased to repay the
loan.
The deceased committed suicide. But the court held that the
presumption
under 113A was not attracted. So the curt acquitted the accused.
The presumption of abetment of suicide by a married woman is
rebuttable.
If the accused is able to prove that the woman has committed
suicide by
other reason or she was not harassed in her matrimonial house by
her
in-laws in the name of demanding more dowry. This presumption can
be
rebutted. In the case of Nilakantha Pati v State of Orissa the
accused
was married to the victim in April 1982dowty was given to the
groom's
party. Accused desired to purchase a house, he asked the victim to
bring
Rs 70,00 from her house. When her attempt failed she was tortured.
On
1986 she died. The accused put up the claim that as the accused
family
was a complete vegetarian and the victim was not able ti coup up
with
them, as she liked non-vegetarian diet. They said that Rs.70, 000
is too
less for the purchase of a new house. The prosecution failed to
counter.
So the accused was acquitted of the charges. The High Court said
that
they presumption available here is rebuttable and such presumption
can
be raised where it has been provided that the wife has committed
suicide
within seven years of marriage and her husband must have subjected
to
cruelty. Here the cruelty has not been meted out to the deceased
either
by the accused or any relative of the accused.
There is an interesting fact to note that the presumption of 113A
is
applicable only against the husband not against woman. This was
revealed
with an interesting case that came before the High Court in 2000.
It is
the case of Alka Grewal v State of Madhya Pradesh
the husband
committed
suicide leaving a note stated about the immoral character of her
wife.
The court said that a case of mental cruelty of wife by her
husband, but
the legislature has not seen this aspect. So the presumption of
113A
cannot be drawn against the wife.
In one of the very famous case of case of suicide by a married
woman
the court brought this presumption when the marriage was eight
years
old. The victim and her three children set herself fire on
1983there was
a dispute regarding dowry with her husband. In 1977 she made a
complaint
to the DSP apprehending the danger of her life, but by the time
the
police came to enquire this matter there was a understanding
between
them. She told the police to take no action against them and keep
her
application in pending. On the day of committing suicide telling
about
the maltreatment she faced. The husband was convicted.
Presumption As To Dowry Death
The term "dowry death" and
"dowry murder" first began to be used
around
1977-78 when investigations revealed that deaths of married women,
which
for years had been camouflaged by the police as accidents or
suicides,
were actually murders or abetted suicides, preceded by prolonged
physical and mental torture by the husband and in-laws in
connection
with dowry demand. Instead of describing them as
"wife murders" or
"abetted suicides" the women's organizations began calling them
"dowry
deaths".
The section 113B of the Indian Evidence Act deals with the dowry
death.
Section 113B states that:
Presumption as to dowry death. -When the question is whether a
person
has committed the dowry death of a woman and it is shown that soon
before her death such woman has been subjected by such person to
cruelty
or harassment for, or in connection with, any demand for dowry;
the
court shall presume that such person had caused the dowry death.
Explanation- For the purposes of this section
'dowry death' shall
have
the same meaning as in section 304-B of the Indian Penal Code (45
of 1860)
This section and the section
304B of Indian Penal Code has been added by the Dowry Prohibition
(Amendment) Act No.43 of 1986 which was with effect from 19th
November 1986. This was done in order to solve the increasing
problem of dowry death. The word dowry death has been
defined in 304B Indian Penal Code and the term dowry has deen
defined in section 2 of the Dowry Prohibition Act 1961
Section 304B of the Indian Penal Code states that-
Dowry death - (1) where the death of a woman is caused by any burns
or
bodily injury or occurs otherwise than under normal circumstances
within
seven years of her marriage and it is shown that soon before her
death
she was subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any demand for
dowry, such death shall be called "dowry death", and such husband
or
relative shall be deemed to have
caused her death.
Explanation. - For the purpose of this sub-section,
"dowry" shall
have
the
same meaning as in section 2 of the Dowry Prohibition Act, 1961
(28 of
1961). (2)Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven years
but
which may extend to imprisonment for life.
The definition of dowry as stated in s2 Dowry Prohibition Act
1961 is-
'Dowry' means any property or valuable security given or agreed to
be
given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage;
or
(b) by parents of either party to a marriage or by any other to
either
party to the marriage or to any person;
at or before or any time after the marriage in connection with the
marriage of the said parties, but does not include dower or mahr
in
the case of person to whom the Muslim Personal Law (Shariat)
applies.
Explanation. I Omitted.
Explanation. II. The expression 'valuable security' has the same
meaning
as in s 30 of Indian Penal Code 1860 (45 of 1860).
In the case of
Keshab Chandra Pandey v State the presumption under
s
113B of the Indian Evidence Act shall be raised only on the proof
of the
following essentials:
(i) Whether the accused has committed the dowry death of a woman.
So the
presumption can be raised if the accused is being tried for an
offence
under s 304B, Indian Penal Code.
(ii) The woman was subjected to cruelty or harassment by her
husband or
his relatives.
(iii) Such cruelty or harassment was for or in connection with the
any
demand for dowry.
(iv) Such cruelty or harassment was soon before her death.
Nature Of Presumption
Section 113B uses the word "shall"
and not 'may' so it is a
presumption of law .On proof of the essentials mentioned above, it
becomes obligatory on the court to raise a presumption that the
accused
caused the "dowry death". The court has no discretion to draw the
presumption under this section if the essential ingredients are
proved
then they are bound to draw this presumption under s113B of the
Indian
Evidence Act. The legislature has made this presumption a
mandatory
presumption of law, of course, rebuttable, Though this may sound
to be a
violent departure from the accepted norms of criminal law. The
legislature thought that the presumption under Section 113B should
be a
mandatory presumption if the evil of dowry deaths is to be
eradicated
from the roots of our society.
If it is proved that soon before her death, the victim was
subjected to
cruelty or harassment in connection of a dowry demand, then the
presumption under s 113B can be raised. If the prosecution has
failed to
prove the case under s 304B, IPC, even then, no presumption can be
raised under 113B of the Indian Evidence Act. So 304B is an
integral
part of 113B of the Indian Evidence Act. Cruelty need not be
physical.
Even mental torture in a given case would be a case of cruelty or
harassment under 304B and 498A. In Nem Chand v State of Harayana
the
parties were married on 24-5-1962. After staying at the
matrimonial home
for two months, she returned to her parents' house and told them
that
her husband wanted a television set and a fridge. Her father gave
her a
sum of Rs. 6,000 and she left for her matrimonial home. Her
husband
again demanded a sum of Rs. 25,000 for purchasing a plot. There
after
the husband took his wife to her parents' home saying that he
would not
take her back unless a sum of Rs. 25,000 was paid to him. After
one year
he took her back but he did not give up his demand for Rs. 25,000.
Soon
thereafter she left for her parents home and came back with a sum
of Rs.
15,000 with a promised that the rest of the amount would be would
be
paid later on. She died of strangulation in her husband's home.
The
trial court found accused guilty. Supreme Court held that accused
should
be convicted.
In a Shanti v State of Harayana , where the death took place
within
seven years of marriage, the in-laws of the deceased did not
inform
deceased's parents about the death but hurriedly cremated the
deceased.
The prosecution succeeded in establishing cruel treatment towards
the
victim. The death could not be said to be natural death and the
presumption under s 113B of the Evidence Act was attracted.
The cruelty or harassment should be meet to the victim soon before
the
victim's death to bring under this presumption. In a case , there
was
dispute between parties regarding dowry and that wife, was sent
back to
her parent's home and was again taken back to her matrimonial home
after
a 'panchayat' which was held to resolve the dispute. This event
happened
10-15 days prior to the occurrence of the incident as the death of
the
deceased. However, there was no evidence, which indicate that she
was
treated with cruelty or harassed with the demand for dowry during
the
period of between her taken back home to and her tragic end. In
these
circumstances, the presumption for dowry death cannot be raised.
The
court held that the, presumption of 113B could not be brought in.
In another case Mangal Ram & Anor v State of Madhya Pradesh
, the
wife
committed suicide within five years of her marriage. She was
living with
her parents for about two-three years. Within one month of
returning to
her matrimonial home, she jumped in to a well, and committed
suicide.
Harassment by husband and her in-laws during this month has not
been
proved beyond reasonable doubt. In these circumstances, the
presumption
cannot be raised against the husband.
In another example
Prem Singh v State of Harayana , there was,
unnatural
death of married woman in her husband's house within seven years
of her
marriage. Evidence showed that the husband had harassed her for
not
bringing sufficient dowry. Further, the medical evidence showed
that the
deceased died due to asphyxia as a result of smothering which is
an
unnatural death. No explanation offered by the husband as to how
the
deceased sustained several injuries on her body. The Court held,
in the
circumstances, the presumption of dowry death could be raised
against
the husband. As a result the High Court was justified in reversing
his
acquittal.
In Pawan Kumar v State of Harayana the deceased and the appellant
were
married in 1985. After a few days of the marriage there was demand
of
scooter and fridge. On account of not satisfying the demand, she
was
repeatedly taunted, maltreated and mentally tortured. In April
1987 when
deceased's maternal uncle died, she along with her husband visited
Delhi
to offer condolences. And by evening on the same day instead of
returning to her husband's place came to her sister's house. She
remained there for a few days. When her husband came to take her
back
she was reluctant but her sister brought her down and sent her
with her
husband. She went with the husband but with the last painful words
that'
it would be difficult now to see her face in the future'. On the
very
next day, she committed suicide.
While examining the constituents of dowry death the court held
that:
(a) when the death of a woman is caused by any burns or bodily
injury; or
(b) occurs otherwise than under normal circumstances;
(c) and the aforesaid two facts spring within seven years of
girl's
marriage;
(c) and soon before her death, she was subjected to cruelty or
harassment by her husband or his relative;
Hem Chand vs. State of Haryana Victim was married to accused , a
police
officer, on 1982. She was sent back to her maternal home whenever
the
persistent dowry demands were not met. On 1984, accused left
victim with
her parents to get some money. 1997, victim died of strangulation
in her
matrimonial home. The husband took her body to -his village.
Victim
father alleged that his daughter had been murdered for dowry. The
police
sent the highly decomposed Since the husband had subjected the
wife to
cruelty before her death, the presumption that he had caused her
death,
offered by section 113 B of the Indian Evidence Act, could be
made.
Birth
During Marriage, Conclusive Proof Of Legitimacy
Section 112 deals with the legitimacy of a child. The section
reads as
follows:
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.
This section lays rules in existence with the rules of natural
justice.
It also assumes the existence of legal marriage. The legal
presumption
of paternity is applicable only to the offspring of married
couple. From
ancient times, it is the presumption that if the husband was
within the
four seas, at any time during the pregnancy of wife, the
presumption was
conclusive that her children were legitimate. Under this section,
there
is a conclusive presumption that a child born during the
continuance of
a valid marriage is a legitimate issue of parents, no matter, how
soon
the birth is, after the marriage. The husband who is strongly
disputing
the point of legitimacy of the child, can only rebut on the issue
of
legitimacy, in every case, is deemed
Where the father and mother were or are married, it is a
presumption of
law, which is binding until rebutted. It is assumed that a person
born
in a civilized nation is legitimate. Though it is a strong
presumption,
it is not a conclusive presumption. It can be rebutted also by
proving
that, at the time when the children or any of them could have been
conceived, the husband could not have had access to his wife.
Where a
married woman had admittedly lived for year with a man other than
her
husband and they both had admitted that he was the father of her
children born during that time, the presumption of legitimacy was
held
to have been rebutted. In the Roman law according to the
well-known
maxim Pater Est Quem Nuptioe Demonstrant
(he is the father whom
the
marriage indicates) the presumption of legitimacy is that a child
born
of a married woman is deemed to be legitimate, and the person who
says
it is illegitimate has the burden of proving it. The section has
no
application over the dispute of maternity. The presumption under
this
section can be drawn in all courts-civil, criminal or revenue-
governed
by Indian Evidence Act. The presumption applied here is
irrebuttable.
In a case , the fact of customary marriage between father and his
first wife was difficult to prove because it was performed 40
years
back, which was way long. There was evidence, which revealed the
fact
they lived together as wife and husband, and the appellant came to
be
born from such wedlock, the presumption of the marriage being a
valid
marriage and so, the appellant being born legitimately.
Blood test is an important piece of evidence to determine the
paternity
of the child. Though by a blood test it cannot positively
establish the
paternity of the child, it can certainly exclude a certain
individual as
the father of the child. Therefore, while the negative finding in
a
blood test is definite, the positive finding only indicates a
possibility. Now the DNA fingerprinting test has been much
advanced and
resorted to by the courts of law to resolve the dispute of
paternity of
the child.
Article 21 of the Constitution confers the fundamental right of
life and
personal liberty. In India chastity of the woman and paternity of
the
child hold much value and are issues of honour. No person in India
will
ever tolerate, cherish or like to be called a bastard nor will a
woman
tolerate to be called unchaste. These are parts of the dignity and
honour for each man and woman in law. Article 21 confers right to
life
and provides that no person shall be deprived of his life or
personal
liberty except according to the due procedure established by law.
The
right to personal liberty is also very important. To compel a
person to
undergo him or herself to a medical test would interfere with the
fundamental right.
Where adultery is to be established merely on the basis of the
birth of
an illegitimate child, it must be proved that the child had been
born,
as a. result of adulterous intercourse. The presumption is always
in
favour of legitimacy. To brand a child as illegitimate, it must be
satisfactorily established that the birth of the child was clearly
the
result of an adulterous intercourse. Presumption of legitimacy
being
highly favoured by law, the proof of adulterous attitude must be
clear
and satisfactory. The party who alleges it must prove it. It is
highly
unsafe to base a finding of adultery and illegitimacy in the
absence of
clear and satisfactory evidence. The standard of proof required
for
proving adultery and illegitimacy is similar to the standard
required
for proof of guilt in a criminal case.
According to Mohammedan Law, a Mohammedan child, born within six
months
of the parents' marriage, would be presumed to be illegitimate
under the
Mohammedan law, it would be presumed to be legitimate under this
section, if it were born during the continuance of the parent's
marriage. According to Hindu law, to render a child legitimate,
the
procreation should take place after marriage. Ti is enough that
the
birth takes place after marriage, though the procreation was
before.
This section consists of two parts. The, first part deals with the
birth
of a child during the continuance of a valid-marriage between a
man and
a woman; and the second part deals with the birth of a child
during 280
days after the dissolution of that marriage. For example if the
pregnancy of a woman was concealed, and a child was born to her
within
about four months of her marriage and she had been-driven out by
the
husband within a few days after marriage, it was held that no
presumption can be raised inside this section.
Where a child is born during the continuance of a marriage, and
the
husband disowning the child fails to establish non-access to his
wife
beyond all reasonable doubts, then the presumption of legitimacy
is
available. In Prem Singh v Dalla Devi Where the marriage subsisted
between the parties and the wife said that she had sexual
intercourse
with her husband on 28 December 1979 and, the child was born on 2
August
1980, and the husband failed to prove non-access, it was held that
the
evidence by the husband for disproving legitimacy and that he did
not
have sexual intercourse with the wife on 28 December 1979 alleged
by the
wife, is barred.
In the case of Sharmila Devi v Shankar Das , the two spouses had
access
to each other after marriage for a number of days and the child
was born
after
six months of the marriage. The Himachal Pradesh High Court held
the
child' as legitimate child. A Mohammedan child born during the
continuance of a valid marriage between its parents would be
presumed to
be legitimate, even before the ruksati ceremony.
Where evidence of access is given, it requires the strongest
evidence
of non-intercourse or other proof beyond reasonable doubt to
justify a
judgment of illegitimacy. The presumption is rebbuttable. In
Ganashyam
Chaturvedi v Radha Devi Where the child is born marriage, after
175
days after first intercourse and access of husband to the wife
before
marriage is not proved, the presumption under s 112 of the
Evidence Act
is not available and the child must be held an illegitimate child.
The word 'begotten' used in s 112 of the Act means
'conceived' and
not 'born'. The emphasis on birth during wedlock as against conception
is
there in s 112 for the reason that as a general rule, it is the
birth
after marriage, which confers legitimacy on a child until its
contrary
is not proved.
Under the second part of the section, a child born within 280 days
from
the dissolution of a valid marriage will be presumed to be
illegitimate.
So in the case of widowhood, though cohabitation is not possible,
the
law will presume in favour of chastity of a woman and legitimacy
of a
child.
Where a child born some 365 days after the last period at which he
could have been begotten by the husband of his mother and 357 days
after
the death of the husband, was set as legitimate, it was held that
although such period of gestation was perhaps not absolutely
beyond the
bounds of possibility, yet there being evidence that the mother
had been
married to her husband for 10 years without having had any
children by
him, and also evidence which pointed strongly to the conclusion of
immorality on the part of the mother, the only reasonable finding
was the illegitimacy of the child.
The presumption of a child born within 280 days of the dissolution
of
the marriage, being legitimate is subject to the condition that
the
woman remains unmarried. If the woman remarries before the birth
of the
child, the second part of the section would have no application.
The
child would be presumed to be the legitimate child of the second
husband
under the first part of the section unless it is shown that the
second
husband had no access to the woman at any time when the child
could have
been begotten.
When a child was born within 5 months after the disillusionment of
marriage presumption of legitimacy of the child arises,. The
burden
shift on the husband to prove that it was impossible to have
access with the divorced wife and so it is a illegitimate child
In this rule
'access' and 'non-access' mean the existence or
non-existence of opportunities for sexual intercourse; it does not
mean actual cohabitation. The section has to be applied with
reference to the facts and circumstances of each case .so it
refers from one case to another. The word 'access' in this section
means 'effective access'. Physical incapacity to procreate, if
established, amounts to non-access within the meaning of this
section. The presumption under this section is the conclusive
presumption of law. It can be only displaced by the proof of non
?access between the parties to the marriage when the child could
have begotten. One can prove non-access saying that he had no
intercourse with his wife and he is impotent.
Conclusion
With the introduction of the above-mentioned section the court
would to some extent stop the violence and the atrocities
committed to women. The presumptions has helped a lot in solving
the problem of dowry death because in such cases it difficult to
get evidence. The presumption is favorable to men at the same the
courts could se that the women folk did not misuse this
presumptions because in order to attract these presumptions the
existence of certain facts have to be proved. The credit of trying
to eradicate this evil should not be given to court alone; the
legislature has also done a considerable amount of work. While
enacting this provision it did not leave any loophole in order the
convict to escape.
***
Bibliography
1. M.C. Sarkar, Law on Evidence, 16th ed, wadhwa and company,
Nagpur 1991
2. Sr. John Woodroffe & Syed Amir Ali, Law of Evidence, 17th
ed.,Vol II, Sreepada Venkata Ganmga Rao, New Dellhi, India,2002
3. Vijayarao Mohite & Vandana Chavan, Law on Cruelty, Abetment of
Suicide by a Married Woman 1st ed., 1993 Akshar Chintamani Pune
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