Section 112 of the Indian Evidence Act, 1872, states that any person born during
the continuance of a valid marriage between his mother and any man shall be
conclusive proof that he is the legitimate son or daughter of the parties to the
marriage, unless non-access between the parties to the marriage is
With the advent of technology and DNA profiling, many arguments are put forth by
academicians, questioning the need for such presumption of legitimacy
when conclusive proof can now be drawn from proven scientific methods. Right to
reproductive autonomy being a fundamental right under Article 21 of the
Constitution, couples who are unable to procreate naturally, can avail the
aid of Assisted Reproductive Technology (ART) methods such as surrogacy, in
vitro fertilization and in-uterine fertilization to have issues.
This article aims to understand the scope of Section 112 of the Indian Evidence
Act, 1872, with the Assisted Reproductive Technology Bill, the Surrogacy
Regulation Bill and the DNA Technology (Use and Application) Regulation Bill,
and the relevance of section 112 with changing times.
Intention Of The Legislature.
It can be understood from the express language of the provisions under Section
112, that the intention of the legislature is to ensure that no child is
bastardised. The social and cultural framework of the nation while framing the
provisions of the Act, has to be taken into account while interpreting the same.
The intention of the legislature has always been to maintain the sanctity of
marriage and retain the legitimate status of any person born during the currency
of wedlock unless proven otherwise. The term any man used in Section 112 of
the 1872 Act, instead of the term husband, especially when the term mother
is used, shows that the Act, contemplates the unfortunate possibility of
adultery by the woman in the marriage, and still presumes legitimacy in favour
of the child, until non-access is sufficiently proved by the husband. It is
needless to state that this is only a rebuttable presumption.
It can be initially argued that Indian Evidence Act, being legislated in 1872,
being a pre-independence Act, did not take into account the various scientific
advancements and technological growth in DNA profiling. Hence it may even be
argued by some that the section has become archaic due to the various
technological advancements in DNA profiling etc.
In my opinion, it has to be understood that this is only a rebuttable
presumption. Moreover, from the very fact that the various bills that have been
introduced in the parliament from 2008-2019, where such presumption of
legitimacy is still retained by the Legislature; it is to be understood, that
the lack of monumental technological advancements in science was not the reason
behind the such presumption, but the primary principle was that the welfare of
the child being of paramount importance, the State’s intention was to bestow
maximum legal rights of legitimacy upon every child, while retaining the
sanctity of the institution of marriage.
The various landmark judgements of the Hon’ble Supreme Court and Hon’ble High
Courts where maternity leave has been granted for intending mothers who have
conceived children through a surrogate, will reinforce the intention of the
judiciary to confer legitimacy upon the children conceived through Assisted
Reproductive Technology methods such as surrogacy, in vitro fertilization etc.
The children conceived through surrogacy are deemed to be the legitimate
children of the intending parents.
Assisted Reproductive Technology Bill, was introduced in the Lok Sabha in 2008,
seeking to regulate assisted regulated technology procedures including surrogacy
procedures in India and consequently sought to legalise commercial surrogacy, in
pursuance of the 102nd Parliamentary Standing Committee Report. Section 61 of
the ART Bill, lays down provisions with regard to presumption of legitimacy of
the children conceived through the process of surrogacy.
Presumption Of Legitimacy
Section 61 states that any child/children born to a married couple through the
use of assisted reproductive technology shall be presumed to be the legitimate
child of the couple, having been born in wedlock with the consent of both the
spouses, and shall have identical legal rights as a legitimate child born
through sexual intercourse.
This section reiterated the presumption laid down under Section 112 of the
Indian Evidence Act. The purpose behind the enactment of this Section is to
ensure that the child conceived through Surrogacy is not bastardised due to any
differences between the commissioning parents. This is a protection extended by
the State to ensure that any child abandoned by the commissioning parents, is
not left to fend for themselves without any legal rights in accordance with
Article 39(f) of the Constitution of India.
By virtue of Section 61, a child born to an ever-married woman through surrogacy
shall be presumed to be the legitimate child of that woman. If the commissioning
couple divorce each other after initiating the procedure but before the birth of
the child, the child shall be presumed to be the legitimate child of the
commissioning couple. Child born to an ever-married woman with the frozen sperm
of her dead husband shall be considered to be the legitimate child of that
It is to be noted that the section particularly refers to the dead husband, but
not a divorced husband. Donor of the ooplasm and the ovum immediately relinquish
all their parental rights over the child/children born through surrogacy. Child
born to commissioning couple who are Overseas Citizens or People of Indian
Origin or foreigners married to Indian citizens, shall not be an Indian Citizen
even if born in India, and shall be entitled to Overseas Citizenship of India
under Section 7A of the Indian Citizenship Act, 1955. Child after reaching the
age of 18 shall be entitled to information about the donor/surrogate, excluding
personal identification. Personal information of the donor or surrogate shall be
released only in cases of life threatening medical conditions with the prior
consent of the donor, parents or surrogate.
Section 61 of the proposed Bill is testament to the fact that, despite various
technological advancements from which one may draw conclusive proof as to the
legitimacy of the child, abundant caution is exercised in revealing any
information regarding the paternity and it is still presumed that the child is
born within the confines of marriage.
Surrogacy Regulations Bill
The Surrogacy Regulations Bill was introduced in the Lok Sabha as Bill 156 of
2019, in pursuance to the 228th Law Commission Report on Surrogacy. The Bill
proposed to abolish commercial surrogacy and regulate the process of altruistic
The Bill is silent on the question as to whether the surrogacy procedure shall
be gestational or traditional. In gestational surrogacy, the surrogate merely
acts as a host for the child to grow in her uterus, and the surrogate does not
provide her egg for the process. Whereas in traditional surrogacy, the surrogate
mother’s own egg is utilised for the process. Therefore, the question as to
whether the intending father can donate his sperm for the assisted reproductive
process is still unanswered.
Presumption Of Paternity
The presumption of legitimacy of child conceived through the surrogacy process
is enshrined in Section 7 of the Proposed Bill. According to section 7, any
child conceived out of the surrogacy procedure shall be deemed to be the
biological child of the intending parents. A wider scope is given to a child
conceived through surrogacy, under the Surrogacy Regulations Bill, in comparison
to the ART Bill, 2014.
The Rajya Sabha, through its reference to the Select Committee, has also given
various suggestions for amendment of the bill, where suggestion to enable
couples living outside the confines of marriage to avail surrogacy procedures.
The DNA Technology (Use And Application) Regulation Bill, 2019.
The DNA Technology (Use and Application) Regulation Bill, has been introduced to
avail DNA technology for the purposes of establishing the identity of certain
categories of persons including the victims, offenders, suspects, undertrials,
missing persons and unknown deceased persons.
Section 112 And The Dna Technology Bill
Section 34 of the DNA Technology Bill states that any information relating to
DNA profiles, DNA samples and records which are maintained in a DNA data bank
shall be made available for judicial proceedings, in accordance with the rules
of admissibility of evidence and with relation to the investigation relating to
civil disputes as specified in the schedule to the bill.
It can be safely inferred from the language in judicial proceedings, in
accordance with the rules of admissibility of evidence, that the DNA
information shall be made available to the concerned parties, only as per
Section 112 of the Indian Evidence Act, i.e., if non-access as mandated by the
provision is sufficiently proved by the aggrieved party.
The said Bill contains a Schedule which has been further classified into 4
parts, regarding the List of matters for DNA filing. Part C of the schedule,
states that DNA identification technology may be availed even in civil
disputes and other civil matters which includes Parental disputes, both
maternity or paternity, under sub classification (i) and includes issues
relating to assisted reproductive technologies including surrogacy and in vitro
fertilization under sub classification (iii).
Hence, it is clear that the Legislature does not want to preclude the parties
from availing the DNA profiling technology services that are provided. The
legislature merely intends to strike a harmonious balance between Section 112 of
the Indian Evidence Act, to protect the sanctity of marriage; and at the same
time, provide opportunity to the parties to disprove paternity through
conclusive scientific methods, provided the preliminary question of non-access
is sufficiently answered by the party aggrieved. The fundamental right against
self-incrimination as laid down under Article 20(3) of the Constitution also
should be given due regard.
Hinduism And Assisted Reproductive Technology
It is not out of place to mention that Hindu mythology speaks of various
instances where such unconventional methods of begetting a child were mentioned
and paternity was still accorded to the legally wedded spouse.
For example, paternity was accorded to King Vichitravirya for the birth of
Dhrithrashtra, Pandu and Vidura, who were conceived through Kulaguru Veda Vyas
(who was part of the Kuru Dynasty) in the Mahabharath. Interestingly, this myth
is comparable to the Surrogacy Regulation Bill, 2019, where the Bill requires
that the surrogate mother shall be a close relative of the intending couple.
Hence, India is not entirely alien to the concept of unconventional methods of
The Distinction Between Gautam Kundu V. State Of West Bengal And Nandlal Wasudeo Badwaik V. Lata Nandlal Badwaik
The constitutionality of Section 112 was upheld and reiterated by the Hon’ble
Supreme Court in the landmark judgement of Gautam Kundu v. State of West
 In the later decision of the Apex Court in Nandlal Wasudeo
Badawaik v. Lata andlal Badwaik
, the Hon’ble Supreme Court, allowed for
the DNA profiling to be conducted in order to determine paternity of the child.
Question arose as to whether the recent decision superseded the previous
decision of the Hon’ble Supreme Court in the Gautam Kundu dictum.
On a perusal of the two judgements, it can be seen that there is a major ground
of factual difference between the judgements. In the Gautam Kundu dictum, the
order of DNA was not passed and the same was challenged, and there was no proof
of non-access submitted to rebut the presumption made under Section 112 of the
Indian Evidence Act, 1872. Whereas in the Nandlal dictum, the DNA request was
allowed by the Court and the concerned party had not objected to the same.
Objection was raised only when the DNA results were contrary to the party’s
Hence, the Supreme Court made a conscious departure from the law laid in
Gautam Kundu v. State of West Bengal
as extracted hereunder:
Fact of the matter is that this Court not only once, but twice gave directions
for DNA test. The Respondents, in fact, had not opposed the prayer of DNA test
when such a prayer was being considered. It is only after the reports of the DNA
test had been received, which was adverse to the Respondents, that they are
challenging it on the ground that such a test ought not to have been directed.
We cannot go into the validity of the orders passed by a coordinate Bench of
this Court at this stage. It has attained finality. Hence, we do not find any
merit in the submission of the learned Counsel for the Respondents. As regards
the decision of this Court in the cases of Goutam Kundu (supra), Banarsi Dass
(supra) and Bhabani Prasad Jena (supra), the same have no bearing in the facts
and circumstances of the case. In all these cases, the court was considering as
to whether facts of those cases justify passing of an order for DNA test. When
the order for DNA test has already been passed, at this stage, we are not
concerned with this issue and we have to proceed on an assumption that a valid
direction for DNA test was given.
When conclusive proof regarding the paternity has already been drawn with the
consent of the parties concerned, the need to presume under Section 112 of the
Indian Evidence Act, 1872 does not arise. The Hon’ble Supreme Court made a
distinction from Gautam Kundu v. State of West Bengal
, in Dipanwita
Roy v. Ronobroto Roy
 on a similar ground that the parties had opposed to
the DNA test only after the results were obtained.
Though it has been held that paternity test during the initial stages of a
child’s life, is against the basic fundamental rights of the individual child
under Article 21 of the Constitution, it has also been categorically
established that the a DNA test does not affect the fundamental right of a
person under Article 21 of the Constitution in all circumstances, and there
arises a need to harmonise between Section 112 of the Indian Evidence Act and
Article 20(3) of the Constitution as held in Selvi v. State of Karnataka. 
Paternity And Legitimacy
The Hon’ble Supreme Court in its landmark judgement in Narayan Dutt Tiwari v.
Rohit Shekhar, allowed the petition filed by a son seeking to declare him
the natural born son of the man he claimed to be his father. The DNA test was
allowed on the ground that every child has the right to learn about the truth of
his/her origin and to ensure that the father does not shirk parenthood and
bastardise the child.
The Hon’ble Court made a clear distinction between legitimacy and paternity
and held that Section 112 of the Indian Evidence only intends to safeguard the
legitimacy of the child and not its paternity. It is thus understood that the
essential principle governing Section 112 of the Indian Evidence Act, is pater
est quem nuptiae demonstrant. Therefore, though it can be argued that the
availability of scientific technology, that can very well confirm paternity,
diminishes the need for such presumption in the first place, the person
aggrieved still has to satisfy the test of eminent need to avail such
Practical Difficulties In Commissioning Dna Tests
The fact that the principle governing the presumption of legitimacy continues to
be the same from the Act of 1872 to the recent Bills introduced in 2019, is
testament to the intention of the legislature and its travaux preparatoires,
that the scientific advancements in DNA profiling, though will be applicable to
civil matrimonial disputes, shall be harmoniously in consonance with the
provisions under Section 112 of the Indian Evidence Act, 1872 and the aggrieved
party can assail such presumption only by proving non access.
The DNA Regulation Bill is still pending before the Parliament and is not an Act
yet. The Assisted Reproductive Technology Bill and the Surrogacy Regulations
Bill are yet to be tabled and passed by the Parliament, interestingly the two
bills being completely different, one regulating commercial surrogacy and the
other banning it!
Furthermore, assuming that Section 112 is removed or amended owing to the
various DNA profiling techniques to conclude paternity, the same would open a
pandora of litigations and every husband who has no intention of paying
maintenance to his wife and child, would take up the defence of paternity and
the same would dilute the objective of the Acts due to the likelihood of
multiplicity of suits and venomous litigations. In the absence of Section
112, the entire burden of ensuring that the DNA tests are not conducted as an
empty routine shall fall squarely upon the courts to accordingly determine
The orders in the aforementioned judgements where the courts have unequivocally
accepted the results of the DNA tests conducted and held them to be sufficient
and conclusive proof without any dispute, is indicative of the growing
acceptance towards DNA testing methods, and that the preliminary presumption
made under Section 112, does not affect the implementation of DNA profiling in
any manner. On the contrary, Section 112 establishes a healthy checks and
balances system while determining the question of legitimacy and paternity.
While it is true that constitutional morality will supersede culture of
tradition, Section 112 of the Indian Evidence Act, is only a preliminary
rebuttable presumption made in order to retain the legitimate status of children
born in wedlock. The provision is very well adaptable to the present-day
scenario as the welfare of the child is still of paramount importance. It is oft
told that parents construct the child biologically, but the child constructs
the parents socially.
Family is the fulcrum of society, and with changing times, the society has begun
to accept non -traditional methods of childbirth. The legislation is also a
reflection of these changing times. The term commissioning couple used in the
Assisted Reproductive Technology Bill, 2008, being altered as intending
in the Surrogacy Regulations Bill, 2019, is indication of the same.
I emphasise that Section 112 cannot be dismissed as archaic or not applicable to
the technologically equipped nation. Per contra, it should harmoniously be read
along with the various enactments that are sought to be introduced by the
Parliament seeking to regulate the various scientific advancements in the field
of DNA profiling and surrogacy.
The provisions of Section 112 of the Indian Evidence Act when read in consonance
with the concept of DNA profiling and the recent surrogacy bills leave us with a
simple unanswered question – we can, but should we?
Written By: M. Sudharsana
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