A Time to reconsider Section 112 of the Indian Evidence Act

Article for Blog Post Writing Competition 2011 | by Shuchi Singh

April 12th, 201112:56 pm

The conclusive proof of legitimacy of a child born during the continuance of a valid marriage is significantly analysed under section 112 of the Evidence Act and is based on the maxim pater est quem numtioe demonstrant, meaning thereby “the father is he, whom the nuptials indicate”. It says that the fact that a person was born during the continuance of a valid marriage or within 280 days after its dissolution but before the woman remarried someone else is itself a conclusive proof that the person to whom the mother of the child was married is the biological father of the child born. Here, it seems that the law is a step ahead than the medical science, as the exact number of days for child birth, is not even settled in medical arena, till date. Furthermore, there is no rationale behind this as to why it is not, 260 or 300 days?

When we look into the reasoning behind this, 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 favour of the legitimacy of the off-spring. One more reason as to why Section 112 was enacted in its present form is that in 1872 when the Bill was enacted, polygamy was deep rooted in the Indian society. Women were vulnerable to exploitation; therefore this Section was an attempt to protect their chastity. In the present scenario, the husband has the only option of rebutting on the issue of ‘non access’ to his wife otherwise the legitimacy of the child is deemed certain. This can be proved either by showing that he was away in some other city or at a distance from which he could have had no possible opportunity of having sexual intercourse with the mother or by proving that he was impotent at all times at which the child could have been conceived. If however, the husband fails to prove any of these, he shall be deemed to be the father of the child born even if he can prove that someone else is the biological father of the child born, even with infallible scientific evidence.

If there is a case where a husband donates his sperm and then becomes impotent from some disease. His wife uses the donated sperm for conceiving a child after their marriage. If we go by Section 112 of the Indian Evidence Act, the husband can easily prove that the child is illegitimate. Now, applying Section 112 of the Indian Evidence Act to surrogacy, whereby a woman agrees to become pregnant and deliver a child for a contracted party as a gestational carrier to deliver after having been implanted with an embryo. For example Z is the surrogate mother of A, and X is his mother. Then according to Section 112, A would be legitimate child of Z’s husband who is nowhere involved! In modern context when there are varied options like surrogacy, sperm banks, In Vitro Fertilizations and DNA testing, how can one feel that Section 112 is logical? The problem is modern scientific developments are shattering these principles. The problem is that this ancient law as to legitimacy is yielding absurd results in modern times. The gravest problem with the Section is it presumes that sexual intercourse is an absolute essential for the conception of a child in a woman’s womb.

Recently, the Supreme Court of India, in Kamti Devi vs. Poshi Ram (AIR 2001 SC 2226) refused to rely on the result of a DNA test and held that under sec. 112 of the Evidence Act non- access between the man and woman is the only way to raise the presumption against legitimacy. The dilemma of the Court is that accepting DNA as evidence of legitimacy is likely to render many children illegitimate and many women unchaste. This is quite unfair for the husbands, and the court appears to be saying to them that: “It is your child, unless you can prove beyond reasonable doubt that it is not!” This is certainly not the solution to the problem.

The Law Commission in its 185th Report, proposed certain amendments to Section 112 which are yet to be given force. The Commission proposed that in the case of blood tests, there can be evidence by way of DNA tests to prove that a person is not the father and added three more exceptions under section 112 of the Indian Evidence Act – (a) medical tests to prove impotency (b) blood tests (c) DNA test. Here, introduction and admission of DNA technology can actually be fruitful, to meet the ends of the justice. Blood group antigens, serum proteins, erythrocyte enzymes and salivary proteins are of importance in ascertaining the parentage with certainty. As Roscoe Pound put is:

Law must be stable. But not stand still.”

Article by-

Shuchi Singh


“[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]”

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