Article 116 of the Bharatiya Sakshya Adhiniyam, 2023, provides that a child born during the subsistence of a valid marriage, or within 280 days of its dissolution (provided the mother remains unmarried), shall be conclusively presumed to be the legitimate child of the husband. The presumption may be rebutted only by proving that the spouses had no access to each other at the time when the child could have been conceived.
The question of who the law recognizes as a child’s father is not just a mere question of fact. It has a deep impact as it shapes family relationships, social identity, inheritance, and lifelong responsibilities.
This question is governed by Section 116 of the BSA, which is akin to Section 112 of the Indian Evidence Act, 1872. This provision assumes that a child born during a valid marriage is the legitimate child of the husband, and the only ground to challenge this presumption is by proving non-access at the time of conception.
This rule was very great at the time of enactment, as it protected children from social stigma in an era when science was not so advanced, so it could be used to determine paternity.
Argument for Reform
This article argues that Article 116 must be reformed—not by abolishing the marital presumption, but by expanding the grounds of rebuttal to include scientifically reliable DNA evidence, subject to strict judicial safeguards and a limitation on the period to challenge it.
A conclusive presumption that ignores reliable genetic evidence risks transforming a protective legal fiction into an instrument of injustice.
Why the Law Relied on Presumption
The presumption of legitimacy was not baseless. At the time of the enactment there was no scientific method with accuracy to determine biological paternity, so the law opted for certainty over speculation.
Principle Applied:Pater est quem nuptiae demonstrant – the father is the man whom the marriage indicates.
Objective: To keep families intact and protect children from bastardy.
Judicial Approach: Indian courts in most scenarios relied on family stability rather than biological accuracy.
This approach sounded reasonable in earlier times. However, the time has now changed.
Modern Scientific Advancements
Modern testing methods like DNA can exclude or confirm paternity with an accuracy exceeding 99.9 percent.
Aspect
Earlier Legal Position
Modern Reality
Basis of Determination
Presumption of marriage
Scientific DNA testing
Accuracy
Uncertain / Assumptive
More than 99.9% accurate
Judicial Focus
Family stability
Truth + fairness + rights
Neglecting evidence derived from such methods with great accuracy is a matter of caution that should be looked on.
Judicial Trend and Problem of Rigid Interpretation
Despite the scientific evolution, judicial interpretation of section 116 of the B.S.A. has remained remarkably rigid. Courts are inclined to the only available presumption of rebuttal, i.e., non-access, which should be clearly established, even neglecting the D.N.A. evidence.
As stated by the Honorable Supreme Court in the case of “Kamti Devi v. Posh Ram, 2001,” the Supreme Court reaffirmed that scientific evidence solely cannot displace presumption unless non-access is proved.
Scientific evidence alone is insufficient
Non-access must be clearly established
D.N.A evidence may be overlooked
Even impotency is also not a ground for rebuttal [but many jurisdictions, like the English law and our neighbor country Sri Lanka, have added impotency].
While latter cases like the “Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, 2014” case recognized the evidentiary value of the data derived from DNA testing, section 116 also acts like a rule that has very limited grounds to be rebutted.
As per the provision, a person may be declared a legal father of a child despite clear scientific evidence rejecting the paternity simply because non-access is hard to prove.
A Fascinating Contrast with Criminal Law
The extent of rigidity of article 116 becomes more striking when compared with presumptions in criminal law.
Statutes like the Narcotic Drugs and Psychotropic Substances Act, 1985, and the Protection of Children from Sexual Offences Act, 2012, comprise presumptions. Yet these presumptions arise post proving of basic facts, and they are open to rebuttal.
Aspect
Section 116 (B.S.A)
Criminal Law Presumptions
Grounds for Rebuttal
Very Narrow (Non-Access)
Broader and Flexible
Role of Scientific Evidence
Limited Impact
Considered Alongside Facts
Standard of Proof
Rigid Presumption
Based on Proved Facts
We cannot overlook the fact that criminal law operates in matters relating to severe punishment, including years of imprisonment, which affect the liberty of the individual, so the chance of rebuttal is needed for a fair trial.
In comparison, Section 116 allows a very narrow ground of rebuttal, and we cannot ignore the fact that it is a civil matter, so no harsh punishment is given, but it also has lifelong consequences like fatherhood and succession, which should be dealt with caution, as if one is forced into fatherhood, it might just look good on paper, but in reality, the child will never be treated the same, so child welfare, which is the backbone of the section, is hampered.
185 Law Commission of India Report: A Missed Opportunity
The 185th Report of the Law Commission of India identified the strictness of section 114 of the Indian Evidence Act [now section 116 of the B.S.A.] as it was shaped by a time when reliable and accurate science tools were not available, which is not a problem in today’s time where science has so much evolved.
The report challenged this square notion of presumption in today’s time and advocated for adding more grounds of rebuttal, like including impotence.
Inclusion of impotency as a ground
Recognition of blood test evidence
Acceptance of D.N.A test results
Because impotency is a ground for divorce under the Hindu Marriage Act, 1955, section 12[1][a], and in the case Digvijay Singh v. Pratap Kumari, 1970, divorce was granted due to impotency, as well as blood and DNA tests to cope with modern times.
This recommendation was carefully examined to maintain a balance between child welfare and inclusion of scientific techniques.
Global Relevance
The Uniform Parentage Act [U.S.A] provides a useful comparative model to analyze Article 116 of the B.S.A. by demonstrating how scientific methods can be integrated without undermining child welfare. The U.P.A. also recognizes a marital presumption of paternity, but it also allows rebuttal through genetic testing on multiple grounds, with proper scientific standards, like only those tests to be accepted which have 99 percent probability and a combined paternity index of 100 to 1, which shows that benchmark is high enough so that no false paternity case arises.
It also prescribes a limitation period of 2 years for adjudication of paternity; this is the thing which we should inculcate in our law also, as in India, paternity disputes arise in many cases at the time of divorce [like in the case of Dukh Tar Johon v. Mohd. Farooq (1987)]. Courts can, simultaneously, if they feel that allowing a D.N.A. test will hamper the child welfare, they can refuse it also for the well-being of the child.
So, the U.P.A. and the Family Law Reform Act of the U.K. are proper examples demonstrating how a balanced approach can accommodate scientific methods while preserving family stability and still serving the best interest of the child.
Limitation period of 2 years for paternity disputes
Judicial discretion to refuse DNA tests for child welfare
The Way Forward
A meaningful reform of Article 116 does not require abandoning the marital presumption of legitimacy. The presumption should continue, as it acts like a shield protecting children from social stigma. However, it should be flexible regarding acceptance of scientific evidence.
Expand Scope Of Rebuttal
Firstly, the scope of rebuttal should be expanded beyond the proof of non-access. Courts should be empowered to consider scientifically reliable methods like DNA evidence, where there exists a prima facie case. The presumptions must be strong but should not always undermine biological truth.
Judicial Safeguards
Secondly, these reforms must be inculcated with strict measures, like genetic testing should be ordered only upon furnishing prior judicial authorization, recording reasons in depth, and also showing that it will not affect the welfare of the child adversely. Courts should also have the authority to refuse testing when it seems that the welfare of the child will not be upheld.
Limitation Period
Thirdly, a mandatory introduction of a limitation period to challenge paternity, like two years, which is mentioned in the UPA Act, so that only genuine proceedings succeed, not those that are driven by any malicious intention.
Impact Of Reforms
Preservation of legitimacy presumption
Prevention of misuse through malicious claims
Integration of scientific truth with legal principles
Protection of child welfare
These reforms will preserve the foundational pillars of Section 116 of the BSA. They would also ensure that the law does not compel adherence to a legal fiction where there is conclusive proof.
Conclusion
Article 116 of the BSA was enacted to protect children’s interests in an era when reliable scientific methods were unavailable. That protective purpose continues to remain relevant today.
However, the continued insistence on proof of non-access as the sole ground of rebuttal does not align with the contemporary scientific advancements. With DNA testing offering near-certain accuracy, the law should not treat the presumption as irrebuttable where clear biological evidence is there.
Reform should not abolish presumption but should refine it. A balanced approach – allowing DNA evidence under strict judicial safeguards and within a limited time period – can simultaneously preserve child welfare and prevent injustice. The law must evolve to ensure that legal fiction does not override the biological truth.
Summary Table
Aspect
Current Position
Proposed Reform
Presumption of Legitimacy
Strong and conclusive
Retained but flexible
Rebuttal Grounds
Proof of non-access only
Include DNA evidence
Scientific Evidence
Limited acceptance
Allowed with safeguards
Limitation Period
Not defined
2 years (as in UPA)
Child Welfare
Primary concern
Continues as paramount consideration
References
Statutes
Bharatiya Sakshya Adhiniyam, 2023, Article 116.
Indian Evidence Act, 1872, Section 112.
Hindu Marriage Act, 1955, Section 12(1)(a).
Narcotic Drugs and Psychotropic Substances Act, 1985.
Protection of Children from Sexual Offences Act, 2012, Sections 29–30.
Uniform Parentage Act, 2000 (USA).
Family Law Reform Act, 1969 (United Kingdom).
Reports
Law Commission of India, 185th Report on the Review of the Indian Evidence Act, 1872 (2003).
