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law ArticlesDNA Technology and Section 112 of Indian Evidence Act, 1872: An Urgent Need for Amendment.

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Dharm Veer Singh, VI Semester, National Law University, Jodhpur (Raj)

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The wordings of Section 112 of Indian Evidence Act starts, stating, "Birth during marriage, conclusive proof of legitimacy". Here the legal presumption is similar to that of the Latin Maxim, ‘pater est quem muptice demonstrat’, meaning thereby, ‘he is the father whom the marriage indicates’. 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.

When we look into the reasoning behind this notion, the only reason which comes up, is that it is undesirable to enquire into the paternity of child whose mother and her husband, had between them, a subsisting marital status and had access to each other. The law presumes strongly in the favor of the legitimacy of the off-spring. The husband who is strongly disputing the point of legitimacy of the child, can only rebut on the issue of ‘access’ and ‘no-access’, otherwise the legitimacy, in every case, is deemed. The very objective of this section seems to be gender biased, from its commencement. And, to decide the conclusiveness, only on the basis of argument will not render the purpose of judiciary in true sense.

Moreover, there still lies an ambiguity in the contents of this section. Here the law states that if a child is born within 280 days, after dissolution of marriage, the legitimacy of that child is conclusive. Here, it seems that the law is a step ahead then the medical science, as the point regarding exact days of child birth, is not settled in medical arena, till date. It is basically an issue of medical science which has to be dealt with sincere scientific aptitude and by Laws of Nature. Deciding this issue, on the recourse of legal arguments, is totally a faulty approach and the course, which we are following today, deliberately ends up in faulty conclusions.

Basically, this section was formulated in year 1872, nearly 140 years ago. But, in last three decades, there is an unpredictable growth of scientific temperament. And, even the Legal Community is showing the impression of the same.

The Courts readily admits the scientific evidences in case of theft, rape, murder and what not. But it is far beyond the reasonable understanding as why the issue of legitimacy is left open, to be decided by the legal interpretations and not by scientific techniques.

Here, introduction and admission of DNA technology can actually be fruitful, to meet the ends of the justice. The development in DNA based studies is vast, complex and expanding on a monthly basis. Inspite of repeated legal challenges, mainly in the USA, no two persons other then identical twins, have been found to have identical DNA profiles, the possible number of presumptions far exceeding the population of the world.

In paternity testing, DNA now allows positive determination of parenthood, rather than the statistical likelihood or exclusion offered by blood typing in former years. Further, there is one more recent technique whose probability of giving exact result is 99.9%. It is HLA testing. Blood group antigens, serum proteins, erythrocyte enzymes and salivary proteins are of importance in ascertaining the parentage with certainly and all of them are heritable characteristics, followed accepting genetic principles. When conventional blood group systems like ABO, Rh, MN, etc. are used in disputed parentage cases; the possibility of fixing the parentage cases, the possibility of fixing of HLA testing is used along with the conventional blood group systems in disputing parentage cases, the probability of fixing the parentage is about 99.9%.

Child Born During the Continuance of Valid Marriage.
There is a strong presumption that if a child was born during continuance of marriage, it is immaterial, how soon after the marriage, it was born. Moreover, the Courts had reached to the conclusion, regarding the parenthood, only because of the fact that the wife and husband were living in a same room. Here we have to broaden our mentality, while analyzing this point. Mere living together, does not conclusively decide that they had intercourse. This is an issue of love, affection and basic understanding between each other. It is highly probable, in the social system, like ours that they are staying together only because of social restrictions or because of some obligations but might not have any commitment for each other. There also arises the possibility that one of the spouse id eager for a child whereas the other does not feel any need of the child. And, if under such circumstances if a child is born, then the medical reasoning should be brought into the scenario, to determine the parenthood of that child.

More so ever, in the Criminal matters the character of a person also plays an important role and is considerable. But, this section is not interpreted in this manner. If a woman, although married, still living an adulterous life, her character would not rebut the presumption of legitimacy of children within 209 days of possible sexual connection. Here we have to consider the point of adulterous conduct of wife. So, here if the husband is disputing the parenthood, then his submission had got substance and only medical recourse can be taken, to determine the ultimate conclusiveness. But a similar contention was raised and rejected in the case  where it was held that’ ‘in the view of the admitted evidence that the wife was living with the husband in the same room; it should be presumed that the pregnancy was due to the cohabitation with the husband.

Similarly, where the child was born during the pendency of maintenance petition and the husband failed to prove "non-access" it was held that the child was legitimate off spring. But here, the point to be noted is that the wife was living an adulterous life. Even if the husband is seriously ill, then also the issue of presumption, under Section 112 cannot be rebutted. So, basically to the scope of this section is very narrowed down by such approach.

280 Days.
This section also talks about the time period as to when the child is supposed to be born but it an entirely medical issue. Even, medical experts cannot tell us the exact day and time, as to when a child will be born. They could only suggest a certain probable time period. If we go through the wordings of the section then a time of 280 days is being seems to be settled. But, there is no rational behind this as why not, 260 or 300 days. And, even if, the medical experts do not have any firm stand on this point, then from where did the legal jurists brought the calculated numbers of 280 days. It is to be kept mind that the birth of a child is a biological process and not a mathematically equation.

If we go through the case laws, on this point, it is led enough that different Courts have different views regarding this issue. If we look into ‘Modi’s Medical Jurisprudence and Toxicology’ , under heading, ‘The Maximum Period of Pregnancy’, various periods have been mentioned, starting from 315 days to a period of about 349 days. Another jurisprudential authority by Dr. Lyon in ‘Medical Jurisprudence for India’, it is stated that;

What is the longest period, which in natural human gestation, may be:
1. That this may be 296 days.
2. Most authorities agree in considering that the interval may be as long as 44 weeks or 308 days; but it might also extend to 311 days.

Some of the authorities consider that the interval may extend to 46 weeks-315 to 322 days.

Conclusion.
So, a final solution to all this dilemma and uncertainty can be the DNA mapping and comparison of DNA of a child and the parents. In the recent case of State through C.B.I. v. Amaramani Tripathi the paternity of a six months old fetus in the womb of deceased was conclusively established with the help of DNA test. Further, the Courts, these days, is heavily relying on scientific proofs, in the cases of murder and rape. Even there are cases where the conviction is made by following the medical evidences. So, it is high-time that the scientific aptitude should be brought in the issue of determination of legitimacy of a child.

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The  author can be reached at :
dharmveer.nlu@legalserviceindia.com

 

 

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ISBN No: 978-93-82417-01-9