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
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
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
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.
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
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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