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Critical analysis of Section 112 of Indian Evidence Act and Mandatoriness of DNA Test

Author of this article – Mr. Ethunandhan Sridhar, Vth Year B.com.,LL.B(Hons.), Sastra Deemed to be University.

Introduction:

Section 112 of the Evidence Act raises a conclusive presumption about the paternity of a child born during the subsistence of a valid marriage.[1] The said conclusiveness can be avoided if it can be shown that the parties had no access to each other at the time when the child could have been begotten. The general presumption is that, the result of genuine DNA Test is said to be scientifically accurate. But if a husband and wife were living together during the time of conception, and the DNA Test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable.[2]

Birth during continuance of marriage is conclusive proof of legitimacy in the absence or evidence of non-access

The burden of proof is on the person who is disputing the legitimacy of the child or person even after the conditions under Section 112 of The Indian Evidence Act, 1872 is satisfied. .A person who claims to be entitled to any right on the ground of his being the illegitimate son of a person, has upon him the onus of proving the assertion.[3] If a party admits the paternity of a person but alleges him to be an illegitimate offspring, the burden of proving that the person is illegitimate is on such party.[4]

This section, which is based on the maxim pater est quem nuptiae demonstrant (father is he whom the nuptials indicate), create, in favour of a child both born during the continuance of a valid marriage between his mother and the alleged father, a conclusive presumption of legitimacy, in the absence of evidence of non-access between the parents. The provision is derived from the English rule of law, that the child born in wedlock should be treated as the child of the man who was then the husband of the mother, unless it is shown that he had no access to the mother at the time of conception.[5] The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.

It is rebuttable presumption of law that a child born during lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.[6]

In Dukhtar Jahan v. Mohd. Farooq,[7] the Supreme Court held: “Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.” The view has been reiterated in many later cases.[8]

When a child is born during lawful wedlock, there is an initial presumption in favour of legitimacy; in other words, which the husband had intercourse with the wife at the time when the child must have been conceived. The presumption is a rebuttable one and may be rebutted by showing non-access; but once access of, or intercourse by the husband is proved, no evidence can be allowed to show that the child is not the child of the husband.[9] It is immaterial how soon after the marriage the child is born;[10] and the presumption applies although the birth occurred so soon after the marriage that the child must have been begotten before it,[11] or even if the mother was visibly pregnant at the time of marriage

Husband has access to the mother of the child:

It is a peculiarity of the English law that it does not concern itself with the conception, but considers a child legitimate who is born of parents married before the time of his birth though they were unmarried when he was begotten,[12] and this peculiarity of the English law has no doubt been imported into India by section 112 of the Evidence Act,[13] in as much as in question of legitimacy the point of time of the birth of the child is made the deciding factor[14] and not the time of conception, which has to be considered only to see whether the husband could or could not have access to the mother of the child.[15]

Right to Privacy – Article 21

The DNA test does not violate article 21 of the constitution because every fundamental right must be restricted on the basis of compelling public interest and DNA test is also one of a kind. Therefore, right to privacy which includes right to life is not an absolute one and it is on this basis the Supreme Court has upheld the constitutionality of law affecting the right to life and freedom of a person, including medical examination. If there were conflict between the fundamental rights of two parties, that right which advances public morality would prevail.[16]

DNA Test is mandatory for the Conclusive proof of Paternity:

It is that the DNA Test is not mandatory and at the same time the same was not necessary to prove the paternity of the child.

We may remember that section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. But even that is not enough to escape from the conclusiveness of section 112 of the Evidence Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.[17]

Women seeking declaration that she is legally wedded wife of appellant and female child is his legitimate daughter. DNA test is positive, it would redeem woman and her child of their trauma that they were undergoing for several years. Though DNA test cannot be ordered as matter of course in every case, it is permissible in exceptional case. Therefore, order for DNA test by Women’s Commission is proper.[18]

The court has ample power to direct the person to undergo DNA testing but the court should satisfy itself that a strong prima facie case has been established to warrant such a test.[19] This has been reiterated in a plethora of cases like Narinder Singh Bogarh v. State of Punjab,[20] Dwarika Prasad Satpathy v.Bdiyutprava Dixit.[21]

When DNA Test is mandatory?

Only because a party to the dispute have disputed a factum of paternity will not make the court to direct DNA test or such other test to resolve the controversy. The parties should be directed to lead evidence to prove or disprove the factum of paternity and only if the court finds it impossible to draw an inference or adverse inference on the basis of such evidence or record or the controversy in issue cannot be resolved without DNA test, it may direct DNA test and not otherwise.[22]

Moreover in view of admitted facts from pleadings, issue of paternity could be decided effectively. In such circumstances, when paternity can be decided effectively even otherwise without resorting to DNA Test. DNA Test cannot be directed in such proceedings.[23]

The Contemporary View of DNA Testing:

It is a well-accepted fact that the law has to evolve in order to satisfy the need of the rapidly changing society and keep abreast with the scientific developments taking place. The courts should appreciate the probative value of new standards and new concepts of evidences in the modern era because technology of DNA testing has been accepted as a method of proving paternity and other similar disputes. Modern genetic and reproductive technologies address some complex and factual issues and DNA testing is one such pioneering move if allowed to be adduced as evidence by the judiciary. In Sharda v. Dharmpal,[24] a three judge bench of the Supreme Court held that (a) A matrimonial court has the authority to direct a person to submit to medical tests, (b) Such an order of the Court will not violate a person’s Right to Personal Liberty under Art. 21 of the Indian Constitution and (c) The Court must exercise this authority only if the applicant has a strong prima facie case and there is sufficient material before the Court. Thus, presently, the Court has the power to behest a person to undergo medical examination. Nevertheless, the Court may only give these directions under Section 112 of the Evidence Act if there is no evidence of non-access. The spiritual driving force behind this chapter, which is no longer applicable in the Modern Era, can be seen in the language of the judgment in Gautam Kundu v. State of Maharashtra.[25]Also in the case of State through C.B.I. v. Amaramani Tripathi,[26] the paternity of six months old fetus in the womb of the deceased was conclusively established with the help of DNA test.

Permission for DNA not to be claimed as a right.

Whilst reading the section 112 along with Section 4 of the Indian Evidence Act, 1872 it clearly states that without DNA test the presumption of conclusive proof can be perceived.

Section 112 of the Evidence Act requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” means the existence or non-existence of opportunities for sexual intercourse. It does not mean actual co-habitation. The presumption can be replaced by a strong preponderance of evidence and not by a mere balance of probabilities. The following is the position as to permissibility of blood test to prove paternity:

(1) The Courts in India cannot order blood test as a matter of course.

(2) Wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.

(4) The Court must carefully examine as to what would be the consequences of ordering the blood test, whether it will have the effect of blending a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.[27]

‘Progressive Realisation’ with respect to DNA Evidence

“Progressive Realization” means that “accessibility should be progressively facilitated: legal, administrative, operational and financial hurdles should be examined. This doctrine of Progressive Realization mandates the laws of a country should be in consonance with its modern ethos and it should be “sensible” and “easy to apply” because the state has an immediate obligation to take appropriate measures for the progressive realization of economic, social and cultural rights. The courts should adapt to the technological furtherance and adopt DNA testing and other such scientific methods in the process of adducing evidence and the state should accelerate reasonable and progressive schemes to ameliorate vast areas of deprivation. Therefore this remedy must be made available to a wider range of people as time progresses and eventually the access must be broadened.

Conclusion:

DNA testing is a powerful boon in administration of justice regarding the disputes relating to paternity. The justice administration system needs to assimilate genetic profiling and develop practical strategies to resolve emerging legal challenges. Therefore in the matters related to the paternity disputes, the legitimacy or illegitimacy of the child concerned can’t be decided solely on section 112 of the Evidence Act. Eventually, there exists a loophole in the law that leaves many citizens without a remedy. Since DNA testing can conclusively establish the truth in disputes relating to paternity, it should be resorted to unhindered.. Even though the statute may have been protective of women and children through years in which culture was not kind to them, considering the furtherance in social morality and sciences, it no longer stands valid. In stark contrast, the statute is more oppressive and unjust than being protective. It needs to be revised to provide redress by medical testing in situations where there is “access” as well as a legitimate dispute over paternity.

[1] Dipanwita Roy vs Ronobroto Roy, CIVIL APPEAL NO. 9744 OF 2014

[2] Kamti Devi v. Poshi Ram, AIR 2001 SC 2226: (2001) 5 SCC 311

[3] Gopalaswami Chetti v. Arunachalam Chetti, 27 M 32

[4] Dularey Singh v. Suraj Bali Singh, 43 IC 478; Aparbal Singh v. Narpat Singh, 1914 O 42: 23 IC 972; Ram Nath v. Des Raj Singh, 1935 O 80

[5] Palani alias Thirumeni Thevan v. Sethu, 47 M 706: 1924 M 677: 81 IC 456.

[6] Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449.

[7] (1987) 1 SCC 624: 1987 SCC (Cri) 237

[8] Amarjit Kaur v. Harbhajan Singh, (2003) 10 SCC 228.

[9] Samuel v. Annammal, 1934 M 310: 149 IC 100; Jagannatha Mudali v. Chinnaswami Chetty, 55 M 243: 1932 M 39: 136 IC 36; Sivakami Ammal v. Koolydi Chettiar, 1934 M 318: 149 IC 953.

[10] Kahan Singh v. Natha Singh, 1925 L 414: 90 IC 123; Umra v. Mohammad Hayat, 79 PR 1907

[11] R. v. Luffe, 8 East 198; Turncock v. Turncock, 16 LT 611; Parsons (in re:), 18 LT 704; Gardner v. Gardner, 2 AC 723 (728); The Poulett Peerage, 1903 AC 395; Phipson Evidence, 7th Edn., 652.

[12] Lord Mackenzie’s Roman Law, quoted by Mahmud, J, in Muhammad Ismail Khan, 10 A 289; see also Thandi Ram v. Jagan Nath, 1937 L 784.

[13] Muhammad Allah Dad Khan v. Muhammad Ismail Khan, 10 A 289 (339)

[14] Pal Singh v. Jagir, 7 L 368: 1926 L 529 (2): 98 IC 366; Palani v. Sethu, 47 M 706: 1924 M 677: 81 IC 415.

[15] Palani v. Sethu, 47 M 706: 1924 M 677: 81 IC 456.

[16] Buridi Vanajakshmi v. Buridi Venkata Satya Varaha Prasad Gangadhar Rao and Anr., AIR 2010 AP 172

[17] Kamti Devi v. Poshi Ram, (2001) 5 SCC 311: 2001 SCC (Cri) 892; Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

[18] Joseph v. State of Kerala, AIR 2006 Ker 191.

[19] Ms. X v. Mr. Z and Anr., 2002 (96) DLT 354

[20] AIR 2004 SC 1686

[21] AIR 1999 SC 3348

[22] Sunil Eknath Trambake v. Leelavati Sunil Trambake, AIR 2006 Bom 140

[23] Shaik Fakruddin v. Shaik Mohammed Hasan, AIR 2006 AP 48.

[24] (2003) 4 SCC 493

[25] 1993 Cri LJ 3233: AIR 1993 SC 2295: (1993) 3 SCC 418.

[26] (2005) 8 SCC 21

[27]1993 Cri LJ 3233: AIR 1993 SC 2295: (1993) 3 SCC 418.

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