That the words 'conclusive proof' in Section 112 preclude any evidence in rebuttal except in the solitary situation provided in the very Section is clear from the decision of the Supreme Court in Venkateswarlu v. Venkatanarayana, AIR 1954 SC 176. There, a suit was filed by a Hindu son against his father for partition and it was contended for the father that the plaintiff was not his legitimate son. The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiff's mother and upon a deed gifting a house to her and also relied on assertions made in a previous suit that he had no intercourse with her after he married a second wife. The said contention was rejected. It was held that though the plaintiff's mother lived in the house gifted to her there was no 'impossiblity' of cohabitation. In that case, B.K. Mukherjee, J. (as he then was) observed :
"It may be stated at the outset that the presumption, which Section 112 of the Indian Evidence Act contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage, at any time when according to the ordinary course of nature, the husband could have been the father of the child. Access and non-access again connote, as has been held by the Privy Council : vide Karpaya v. Mayandi, AIR 1934 PC 49, existence and non-existence of opportunities for marital intercourse ...........proof of non-accesss must be clear and satisfactory."
Therefore, the presumption raised in Section 112 is conclusive and rebuttal evidence can be permitted to prove that the child is not legitimate, in the only one situation provided in Section 112 and not in any other situation.
Supreme Court had a brief overview of authorities regarding section 112 from para 10 - 22 :
Shyam Lal @ Kuldeep vs Sanjeev Kumar & Ors on 15 April, 2009
"10. Section 112 of the Indian Evidence Act is based on English law. Section 112 reproduces rule of English law that it is undesirable to inquire into paternity of child when mother is married woman and husband had access to her. Adultery on her part will not justify finding of illegitimacy if husband has had access. [See: Nga Tun E v. Mi Chon A.I.R. 1914 Upper Burma 36].
11. More than a century ago in Bhima v. Dhulappa (1904) 7 Bombay Law Reports 95, the Court aptly observed that section 112 of the Evidence Act is based on the principle that when a particular relationship, such as marriage, is shown to exist, then its continuance must prima facie be preserved.
12. The fact that a woman is living in notorious adultery, though of course it amounts to very strong evidence, is not, in itself quite sufficient to repel this presumption [See: R v. Mansfield, 1941, 1 QB 444, 450].
13. In 1947 All LJ 569 at page 572 Hardan Singh v. Mukhtar Singh & Anr. , the Allahabad High Court observed:
"The mere fact that a woman is immoral or is living in a house separate from that of her husband is having relations with other men is not sufficient to rebut the conclusive presumption of legitimacy which is raised by section 112 of the Evidence Act, unless it is proved that the husband and wife had no access to each other during the period indicated in the section."
14. In Lal Haribansha v. Nikunja Behari, ILR 1960 Cuttack 230, relying on Ma Wun Di and Another v. Ma Kin and Others XXXV IA 41, the Court stated that:
"It is the principle of law that "Odiosa et inkonesta non sunt in lege prae sumenda" (Nothing odious or dishonourable will be presumed by the law). So the law presumes against vice and immorality. One of the strongest illustrations of the principle, is the presumption in favour of legitimacy of children in a civilized society. But, where illegitimacy seems as common as marriage and legitimacy, a presumption of legitimacy cannot be drawn and legitimacy or illegitimacy will have to be proved like any other fact in issue."
15. The High Court placed reliance on a judgment of this court in Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana AIR 1954 SC 1761 as under:-
"It may be stated at the outset that the presumption which section 112 of the Indian Evidence Act contemplates is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access again connote, as has been held by the Privy Council (Vide Karapaya v. Mayandy, AIR 1934 PC 49(A), existence and non- existence of opportunities for material intercourse. It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is high favored by law it is necessary that proof of non-access must be clear and satisfactory......."
16. Reliance has also been placed in Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (minor) AIR 1971 SC 2352 where the parties, i.e., the husband and wife were living separately long before the birth of the child. It was held that unless the husband is able to establish absence of access, presumption raised under section 112 of the Indian Evidence Act will not be displaced. The proof of non-access must be clear and satisfactory.
17. In Badri Prasad v. Deputy Director of ConsolidatioN & Others AIR 1978 SC 1557 : (1978) 3 SCC 537, it has been laid down that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed.
18. In Goutam Kundu v. State of W.B. & Another, AIR 1993 SC 2295, this Court summarized the law as under:
"(1) That courts in India cannot order blood test as a matter of course;
(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a 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 consequence of ordering the blood test; whether it will have the effect of branding 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."
19. In Raghunath Parmeshwar Panditrao Mali and Another v. Eknath Gajanan Kulkarni and Another, (1996) 7 SCC 681 it was observed that if a man and woman have lived together for long years as husband and wife and a son having been born to them, legal presumption would arise regarding valid marriage, though such a presumption is rebuttable similarly in S.P.S. Balasubramaniyam v. Suruttayan alias Andalipadayachi & Others, 1994 (1) SCC 460 it was observed by this court that if a man and woman live together for long years as husband and wife then a legal presumption arises as to the legality of marriage existing between the two, but such a presumption is rebuttable.
20. In Smt. Kanta Devi and Another v. Poshi Ram AIR 2001 SC 2226, this Court held as under:
"Section 112 which raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, 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 presumption could be rebutted."
21. In the impugned judgment, the High Court observed that in the present case admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her marriage with the deceased Balak Ram. Therefore, in the absence of cogent and reliable evidence as to non-access on the part of the deceased Balak Ram, presumption under Section 112 of the Indian Evidence Act would be available and it will have to be held that plaintiff and defendants are sons of deceased Balak Ram.
22. On ground of public policy, it is undesirable to enquire into the paternity of a child whose parents "have access" to each other. The presumption of legitimacy arises from birth in wedlock and not from conception."
In Ammathayee v. Kumaresan Balakrishnan, AIR 1976 SC 569, the Supreme Court held that the conclusive presumption can only be displaced, if it is shown that the parties had no access at any time when the child could have been begotten. In that case, the boy's mother who initially did not beget a child allowed her husband to marry three other wives and she was staying in her father's house in the same village, a furlong away from where her husband was staying. Even so, the Court upheld the legitimacy of the child born to her on the ground that non-access was not proved.
Again, in Perumal v. Ponnuswami, AIR 1971 SC 2352, the husband and wife were living apart in the same village long before the birth of the child and the wife had lodged a complaint in a Magistrate's Court that her husband had contracted another marriage. The complaint was no doubt dismissed, but this led to estrangement. Even so, it was held by the Supreme Court that non-access was not proved.
Though it was evident that the husband had undergone vasectomy operation, in the absence of any reliable material to show that the operation was successful, this Court held that the child born to his wife could not be treated as not born to him : Chandramathi v. Pazhetti Balan, AIR 1982 Ker 68;and Chirutha Kutty v. Subrahmaniam, AIR 1987 Ker 5 (DB)=1986 KLT 1068=1986 KLJ 744.
"18. On the facts of the present case, the fact that the child was born during the continuance of a valid marriage, i.e., (a marriage not yet established to be invalid) is conclusive proof that the child is born to the petitioner unless the petitioner is able to prove that he had no access to the respondent at any time, when the child could have been begotten. Therefore, the appellant has to establish non-access to the respondent after marriage. Admittedly, they had spent, at least one night together, even according to the petitioner. Even thereafter there is no proof of non-access. The word 'access' has been explained by the Supreme Court in Venkateswarlu v. Venkatanarayana, AIR 1954 SC 176 :--
''Access and non-access again connote, as has been held by the Privy Council: vide Karapaya v. Mayandi (AIR 1934 PC 49) existence or (non-existence) of opportunities for marital intercourse."
Admittedly, there was in existence opportunity for marital intercourse on the first night. Once such an opportunity is found to be in existence, the petitioner falls outside the exception mentioned in Section 112 inasmuch as what is required under Section 112 is non-access, i.e. non existence of opportunity for marital intercourse, at any time when the child could have been begotten. The words again are 'could' have been begotten and not 'actually begotten'. In the present case, the parties having met on at least one night for purposes of marital intercourse, the petitioner has no chance to prove non-access or non-existence of opportunity for marital intercourse. Even thereafter, there must be proof of total non-access. There is no such proof. Further, as stated in Venkateswarlu v. Venkatanarayana. AIR 1954 SC 176, the 'conclusive' presumption in favour of legitimacy being so strong under Section 112 of the Indian Evidence Act, the proof of non-access must be quite clear and strong.
If the case of the petitioner thus does not come within the exception provided in Section 112, the legitimacy of the child is conclusively established by the fact that the child is born during the continuance of a valid marriage (i.e., a marriage not yet established to be invalid).
in England, the words 'conclusive proof are no longer in the Statute: see Section 26 of the Family Law Reforms Act, 1969 and S. v. MCC & W. v. W., 1972 AC 24. In fact, even under common law, blood test results were admissible only where parties submitted to the tests voluntarily: Liff v. Liff (Orse Rigby) 1948 WN 128). The Courts had no inherent power to compel a witness or party to submit to blood test: W. v. W, (No, 4), 1964 P 67; and S. v. MCC, W. v. W., 1972 A.C. 24. Realising this difficulty, provision is made in the Family Law Reforms Act, 1979, Part III (Section 20-25) for obtaining blood test evidence in any case where paternity is in issue. Section 20(1) provides as follows 5 "In any civil proceedings in which the paternity of any person falls to be determined by the Court hearing the proceedings, the Court may, on an application by any party to the proceedings, give a direction for the use of blood tests to ascertain whether such tests show that a party to the proceedings is or is not thereby excluded from being the father of that person and for the taking, within a period specified in the direction, of blood samples from the person, the mother of that person and any person alleged to be the father of that person or from any, or any two, of those person." (Phipson on Evidence', 14th Edn. 1990) (Paras. 4-27, 15-21).
No such amendments either removing the words "conclusive proof in Section 112 or permitting blood tests to be ordered, have been brought forward by our Parliament.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat. Appeal Nos. 75 of 2008 & 31 of 2010
Decided On: 13.04.2012
Rajesh Francis Vs. Preethi Roslin
"When can it be said that the child was begotten? It is certainly not the date of marriage. It is certainly not the date of delivery. It is the date on which the sperm from the father should have met the ovum of the mother. The date of fertilization of the ovum is certainly the date on which the child could have been begotten. The date of successful sexual intercourse which led to fertilization is certainly the date on which the child can be said to have been begotten for the purpose of Sec. 112. All we intend to note now is that even in a case where the presumption under Sec. 112 operates, there is burden on the court to ascertain the date on which the child in question could have been begotten. That date has to be ascertained with the help of all relevant inputs. All relevant evidence - direct, indirect, circumstantial, scientific and expert testimony, will all have to be looked into to ascertain the date on which the child could have been begotten. It is only then that it can be ascertained whether there was access or non-access of the man and the woman to each other on the said date/period.
Access cannot be decided in a vacuum. Access on the date when the child could have been begotten has to be ascertained. Science and technology now permits the courts to precisely ascertain the date on which the fertilization of the sperm and ovum could have taken place. It is perfectly permissible even in a case where the presumption under Sec. 112 is sought to be drawn for the court to consider all evidence to ascertain the date on which the child in question could have been begotten. The age of the foetus can be authentically ascertained today with the help of scientific inputs. It is not necessary any more to rely merely on the oral evidence of the mother (or any one else) about the date of the LMP to ascertain the gestational age of the foetus. The period/date on which the child was begotten can be authentically and specifically ascertained. We repeat that access or non-access has to be considered with specific reference to the time when the child could have been begotten.
That takes us to the last contention. The larger question is raised as to what is "access". At a time when science and technology had not developed as to enable courts to ascertain scientifically (and not on the basis of oral evidence) whether the child was born on account of the sexual intercourse between a man and his wife, the expression "access" was used in Sec. 112 of the Evidence Act. "Access" in Sec. 112 as understood hitherto is certainly "the possibility of and the opportunity for sexual intercourse between the man and woman". No better and acceptable evidence on that aspect could be authentically secured in yester years and hence access in Sec. 112 was always understood to mean the opportunity for or the possibility of sexual intercourse between the spouses. But should the expression "access" be understood in such vague, general and non-specific terms any more, is a question which courts will have to consider seriously. By access what is really meant is the accessibility of the ovum for the sperm. That is the only way to understand the expression "access" in a modern knowledge society where authentic ascertainment as to whether sperm from a man had caused fertilization of the ovum of the woman is scientifically possible.
The D.N.A test result can certainly be accepted as evidence of access or non access of the man to the woman, relevant to the context. It is not necessary hence to squander the advantage of such authentic scientific expert evidence even while considering the play of Section 112 of the Evidence Act. It is possible in the light of the modern scientific developments to understand the expression "access" in Section 112 as possibility of access of the sperm to the ovum.
We find ourselves faced with similar dilemma as Justice Ormrod in [(1966) 1 All ELR 356] cited by Sri C.S. Dias, the learned Amicus Curiae. We extract the same below:
When as I think in these days, it is possible to enable the courts to do justice on a footing of fact and not to do injustice on a basis of presumption, I should myself greatly hope that no difficulties will ever be put in the way of a child's blood being supplied for blood grouping. I know that it is a sad thing to bastardise a child, but there are graver wrongs; and this is a matter which I am sure all those concerned will approach with great caution, because there is nothing more shocking than that injustice should be done on the basis of a legal presumption when justice can be done on the basis of fact. That is the first thing.
We do also feel that the first concern of any court must certainly be to avoid injustice being done on the basis of a legal presumption when justice can be done on the basis of fact. No court should consider itself a prisoner to the language of a statutory provision or precedents of a bygone era when interpretation consistent with the current legally cognizable inputs and realities can help the court to render justice, to the satisfaction of the judicial conscience. We are hence tempted not to consider ourselves prisoners to the interpretation of Section 112 which was accepted in the yester years and feel persuaded to understand the expression 'access' in a more meaningful, effective, vibrant and contextually relevant manner to enable the courts to do justice.
It is hence that we think that a realistic understanding of the expression 'access' would help courts to dispense better quality justice. Access, we agree, must be reckoned as the possibility/opportunity of the sperm to access the ovum and not merely physical proximity of the spouses or their mere opportunity to have sexual intercourse.If such access is contra indicated conclusively by the D.N.A test, that can certainly be reckoned as evidence of non access which will help the husband to walk out of the Padmavyuha of Section 112 through the only exit door of non access recognised under Section 112."
Kerala High Court
Friday vs By Adv. Sri.S.Sreekumar (Sr.) on 18 July, 2011
This question deserves to be considered carefully. We must first have a look at Sec.112 of the Evidence Act. We extract the same below:
"112. Birth during marriage, conclusive proof of legitimacy.-
The fact that any 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, the mother remaining unmarried, shall be 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."
(emphasis supplied)
There is a contention raised initially that the Family Court need not consider itself to be bound by Sec.112 of the Evidence Act. We shall first of all consider that contention. This contention is raised with the help of Sec.14 of the Family Courts Act. We extract Sec.14 below:
"14. Application of Indian Evidence Act, 1872.__ A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872)."
(emphasis supplied)
It is true that under Sec.14 certain materials can be permitted to be received in evidence by the Family Court whether the same would be relevant and admissible or not, under the Indian Evidence Act. The general and sweeping language used in Sec.14 prompts the counsel to contend that the Family Court is not bound by and can even ignore Sec.112. We are unable to agree. Sec.112 of the Evidence Act incorporates a presumption which is part of the substantive law of this country. The enabling provision under Sec.14 of the Family Courts Act which permits the Family Court, considering the nature of the mission/task before it, to ignore the procedural stipulations and avoid unnecessary bottlenecks cannot, according to us, certainly be construed as a permission or licence to ignore a fundamental substantive statutory stipulation like the one in Sec.112 of the Evidence Act. We are, in these circumstances, unable to accept that the Family Courts, in view of the provisions of Sec.14 can consider themselves to be not bound by Sec.112 of the Evidence Act. If that be so, it would be death knell of the said statutory stipulation. We fail to understand which court can be held to be bound by Sec.112 if the Family Courts were to be held to be not bound by the said statutory provision. The very purpose of the provision would be frustrated. It is before the Family Court that the aid of the presumption would be most necessary.
Notwithstanding the wide sweep of the language used in Sec.14, we reject the contention raised that the Family Courts need not consider themselves to be bound by Sec.112. Considering the purpose, object and scheme of the Family Courts Act, notwithstanding the sweeping semantics employed in Mat. Appeal Nos.75 of 2008 Sec.14, we take the view that the stipulation is merely procedural and cannot permit the Family Courts to ignore fundamental and basic stipulations of law which are substantive in nature. This contention raised must hence fail. Sec.112 mandates that there must be a valid marriage. The section expressly stipulates so. Binding precedents are galore about the basis of the presumption under Sec.112. The provision obviously has its foundation on public policy. Law leans in favour of the presumption of legitimacy of a child born in lawful wed-lock. This principle finds statutory recognition in Sec.112 of the Evidence Act. The presumption is conclusive, unless it is rebutted in the only manner contemplated in the section. This is based on the principle "that he is the father whom the nuptials show to be so or the marriage indicates". This presumption is the foundation of every man's birth and status. It is a sensible presumption of law and is the pivot on which rests the entire fabric of the society.
It is fundamental and axiomatic that valid marriage must be proved before the presumption under Sec.112 can be invoked. Proof of valid marriage is sine qua non for invocation of the presumption under Sec.112. Whatever the period of their cohabitation, however loyal and committed the partners may be to each other and however convincing the evidence of their faithful cohabitation may be, the presumption under Sec.112 cannot be invoked or drawn unless solemnization of valid marriage is proved. Proof of valid marriage is the bedrock on which the presumption under Sec.112 is built.
Such a presumption cannot obviously have any role or play before the validity of the marriage is established. To establish the validity of such a marriage, the presumption under Sec.112 cannot obviously be invoked. In a case like the instant one where the validity of the marriage is assailed on the ground that the wife was pregnant through another on the date of marriage, this presumption cannot have any play at all. It would be a classic instance of putting the cart before the horse, if this presumption were to be invoked for ascertaining the validity of the marriage itself. We have, in these circumstances, no hesitation to agree with the learned counsel for the appellant that the presumption under Sec.112 cannot be invoked in a case where the very validity of the marriage is in question. Only after the validity of the marriage is considered and decided, the presumption under Sec.112 can be invoked. To decide whether the marriage is valid or not, the presumption under Sec.112 cannot obviously be invoked.
It is, of course, true that a decision on the validity of marriage on this ground (i.e, pregnancy through another on the date of the marriage) may have a reflection on the legitimacy of the child born. But that, according to us, is not a valid reason to justify invocation of the presumption under Sec.112 in proceedings where validity of the marriage is impugned on the ground that the wife was pregnant through another on the date of the marriage. The question of responsibility for the pregnancy will certainly have to be ascertained otherwise - without the aid of the presumption under Sec.112.
In this context the question arises whether a distinction can be drawn between legitimacy and paternity in the operation of Sec.112. We certainly consider the question to be very interesting. The presumption, the heading of the section shows is only regarding legitimacy. The semantics employed by the legislature also suggests that the presumption specifically is only regarding legitimacy. Is it possible to exclude paternity from the concept of legitimacy? What would remain and be left in the concept of legitimacy if we were to exclude paternity from the same? It is possible to take the view that legitimacy is permitted to be presumed for certain legal consequences that must follow. In that view of the matter paternity can be distinguished from legitimacy. It is not theoretically impossible for a presumed "legitimate" father to be not the biological father. Legitimacy might bring in legal consequences and obligations. When paternity can be ascertained authentically it would be perfectly permissible, nay laudable, to distinguish between legitimacy and paternity. In most cases legitimacy of a child must include the concept of paternity also. But the two concepts
- legitimacy and paternity, do not certainly cover the same field entirely. If such a view were taken, we do note that the presumption of legitimacy can certainly exist for certain purposes in the interest of the offspring, excluding the traumatic unjustified presumption regarding paternity against the man where paternity is contra indicated convincingly by scientific evidence. Such an interpretation, we feel, can certainly harmonise the interests of a child regarding whose legitimacy Sec.112 can be called in aid and at the same time avoid the trauma of an unfavourable finding regarding paternity when such finding is factually oppressive and unjust. This question, it appears to us, is only academic in this case and it is unnecessary to record any final conclusion on that question. We need only observe that it appears to be theoretically possible to distinguish between legitimacy and paternity and thereby render Sec.112 more congruent to the needs of a knowledge society where authentic ascertainment of paternity is factually possible by scientific inputs without at the same time compromising on the interests of a child born in matrimony. We leave the question there accepting that there is a clear distinction possible under Sec.112 of the Evidence Act between legitimacy and paternity. We do take note of the observations on this aspect by a learned single Judge of the Delhi High Court --Sri. Justice Ravindra Bhat, in paragraphs-26 and 27 in Rohit Shekhar v. Narayan Dutt Tiwari and Anopther (MANU/DE/3701/2010).
The next aspect to be considered is about the importance of the expression "at any time when the child could have been begotten". Sec.112 incorporates a conclusive presumption regarding legitimacy of the offspring if such child is born during the continuance of a valid marriage between the mother of the child and any person. The period during which the presumption operates is the entire period during continuance of a valid marriage and 280 days after its dissolution, the mother remaining unmarried. If the child is born during the specified period, the presumption operates. If the mother is married to another immediately after the dissolution of marriage and a child Mat. Appeal Nos.75 of 2008 is born after such remarriage, the child will be presumed to be the child of the subsequent husband unless it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten.
What perhaps deserves to be noted is that there is no exclusion of any initial period immediately following the marriage to justify invocation of the presumption under Sec.112. Even if the child is born on the very next day after the marriage, Sec.112 operates with vigour and the presumption of legitimacy can be avoided only by proof of non-access. We do not agree with the learned Judge who in P.V. Sabu (supra) observed that access after matrimony alone is relevant under Sec.112. What we intend to note is that it is important to ascertain the date on which the child could have been begotten for a proper operation of Sec.112 of the Evidence Act. In a given case if it is shown that the child was begotten on a day prior to marriage and there is no possibility of sexual access between the man and woman prior to marriage, as admitted in this case, the conclusive presumption cannot be invoked. Otherwise, the presumption does certainly operate. The legislature evidently appears to have chosen not Mat. Appeal Nos.75 of 2008 to exclude any minimum period immediately after the marriage advisedly. That appears to be done consciously to protect the interests of the children conceived in pre-marital sexual intercourse of parents who enter formal matrimony subsequently with awareness of pre-marital conception. We need only observe that the evidence of access will very strictly be insisted by any prudent mind for the pre-marriage period, in a case where the date of conception is proved to be prior to the date of marriage.
When can it be said that the child was begotten? It is certainly not the date of marriage. It is certainly not the date of delivery. It is the date on which the sperm from the father should have met the ovum of the mother. The date of fertilization of the ovum is certainly the date on which the child could have been begotten. The date of successful sexual intercourse which led to fertilization is certainly the date on which the child can be said to have been begotten for the purpose of Sec.112. All we intend to note now is that even in a case where the presumption under Sec.112 operates, there is burden on the court to ascertain the date on which the child in question could have been begotten. That date has to be ascertained with the help of all relevant inputs. All relevant evidence - direct, indirect, circumstantial, scientific and expert testimony, will all have to be looked into to ascertain the date on which the child could have been begotten. It is only then that it can be ascertained whether there was access or non-access of the man and the woman to each other on the said date/period.
46. Access cannot be decided in a vacuum. Access on the date when the child could have been begotten has to be ascertained. Science and technology now permits the courts to precisely ascertain the date on which the fertilization of the sperm and ovum could have taken place. It is perfectly permissible even in a case where the presumption under Sec.112 is sought to be drawn for the court to consider all evidence to ascertain the date on which the child in question could have been begotten. The age of the foetus can be authentically ascertained today with the help of scientific inputs. It is not necessary any more to rely merely on the oral evidence of the mother (or any one else) about the date of the LMP to ascertain the gestational age of the foetus. . The period/date on which the child was begotten can be authentically and specifically ascertained. We repeat that access or non-access has to be considered with specific reference to the time when the child could have been begotten. The precise ascertainment of the date when the child could have been begotten is crucial in a case like the instant one. In this case there is no case that there was any sexual intercourse between the spouses prior to their marriage. That is the admitted case. If the child were begotten prior to the date of marriage, non-access is admitted. Therefore even if Sec.112 were held to be applicable, if a safe finding is possible that the child was begotten prior to marriage, the presumption cannot be drawn in favour of legitimacy or paternity. That would be our answer to the second contention raised in law.
That takes us to the last contention. The larger question is raised as to what is "access". At a time when science and technology had not developed as to enable courts to ascertain scientifically (and not on the basis of oral evidence) whether the child was born on account of the sexual intercourse between a man and his wife, the expression "access" was used in Sec.112 of the Evidence Act. "Access" in Sec.112 as understood hitherto is certainly "the possibility of and the opportunity for sexual intercourse between the man and woman". No better and acceptable evidence on that aspect could be authentically secured in yester years and hence access in Sec.112 was always understood to mean the opportunity for or the possibility of sexual intercourse between the spouses. But should the expression "access" be understood in such vague, general and non-specific terms any more, is a question which courts will have to consider seriously. By access what is really meant is the accessibility of the ovum for the sperm. That is the only way to understand the expression "access" in a modern knowledge society where authentic ascertainment as to whether sperm from a man had caused fertilization of the ovum of the woman is scientifically possible.
In the age of scientific ignorance - before the D.N.A test to authentically ascertain biological parentage came in handy, the expression `access' in Section 112 may have been understood as the physical proximity of the spouses or the opportunity for them to have sexual intercourse. But when science and technology have taken strides forward and permit courts now to precisely ascertain and conclude authentically whether the sperm from the man did really have access to the ovum of the woman, the expression `access' in Section 112 can certainly be understood in a different level and dimension. The Supreme Court has accepted in many cases that "the result of a genuine D.N.A test is said to be scientifically accurate". If such D.N.A test can show authentically that there was no possibility scientifically of the sperm from the man having accessed the ovum of the woman, it can certainly be held to be evidence of non access contemplated under Section 112. The D.N.A test result can certainly be accepted as evidence of access or non access of the man to the woman, relevant to the context. It is not necessary hence to squander the advantage of such authentic scientific expert evidence even while considering the play of Section 112 of the Evidence Act. "To develop scientific temper" is the fundamental duty of every indian citizen under Article 51A(h) of the Constitution. Statutes have to be interpreted by the courts conscious of this fundamental duty of all citizens. The provision of law will have to be given contextual relevance and significance in the present age. Updation of words in statute enacted in a bygone era can be achieved by innovative interpretation relevant to the times. If it is possible to harmonise the expression `access' in the Indian Evidence Act enacted in 1872 in such a manner as to accommodate the great advantage and benefit of scientific and technological development in the modern era, such interpretation has definitely got to be preferred. It would be idle to contend or assume that such scientific evidence must be squandered, ignored and overlooked in view of the language of Section 112 of the Evidence Act understood and interpreted in a bygone era. That would be meek surrender to the tyranny of language and precedents at the expense of justice. The line of decisions of the Supreme Court including Kamti Devi V. Poshi Ram [(2001) 5 SCC 311], according to us, have not considered this question specifically. The possibility of and the opportunity to understand the expression "access" in Section 112 of the Evidence Act in the light of the modern scientific developments has not been considered in earlier binding precedents which understood the said expression `access' to mean mere possibility or opportunity of the spouses to have sexual intercourse. We extract below the specific observations in para.10 of Kamti Devi (supra): "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. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the 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 bastardised 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."
. We have extracted the above passage only to convince ourselves that in spite of the said observations it is still possible now, after a decade, to consider afresh the question whether "access" in Section 112 can be understood in a more specific sense. It is possible in the light of the modern scientific developments to understand the expression "access" in Section 112 as possibility of access of the sperm to the ovum. This question has not been considered by the Supreme Court. The observations in Kamti Devi (supra), according to us, does not foreclose such an approach by this Court even though such an approach has not been actually made by the Supreme Court in that case. That case was decided on other grounds as the Supreme Court found that there was sufficient evidence otherwise in that case to prove that the husband had no opportunity whatsoever to have liaison with the mother of the child. In that view the observations can be said to be only obiter.
We have already taken the view that Section 112 is inapplicable and cannot be called in aid when the precise question to be decided is the validity of the marriage - challenged on the ground that the wife was pregnant through another on the date of marriage. In that view of the matter, it is unnecessary to enter any specific findings on the subsequent questions of law raised. But we feel compellingly persuaded to opine that even if Section 112 were held to be applicable, the following conclusions are perfectly possible now.
(i) It is possible to hold that Section 112 deals only with the presumption of legitimacy and not paternity. The concept of legitimacy need not and does not invariably in all cases include the concept of paternity. There may still be areas within the concept where there is no overlapping between the two concepts. In the interest of welfare of the child, it is perfectly permissible to burden a nonbiological father with obligations arising from legitimacy of a child born during his valid matrimony with the mother of the child. In that event the child's interest - his maintenance, upkeep and inheritance, can be protected by such a presumption. It is not necessary to include within the presumption of legitimacy the presumption of paternity invariably in all cases.
(ii) As authentic and scientific evidence of the precise date/period when the child was begotten (i.e., the gestational age of the foetus) is forensically possible now, access/non-access as on such date/period has to be specifically ascertained by courts before choosing to draw the conclusive presumption under Sec.112 of the Evidence Act.
(iii) The expression `access' in Section 112 of the Evidence Act in the modern era of scientific and technological development is not to be construed merely as physical proximity or the possibility of sexual intercourse between the Mat. Appeal Nos.75 of 2008 spouses. It is to be reckoned more appropriately and specifically as the possibility of access of the sperm of the man to the ovum of the woman. In that view of the matter, the result of a valid D.N.A test would be admissible to authentically rule out (or confirm) access under Section 112 of the Evidence Act. Such an interpretation will be more consistent with the times and will help the courts not to squander available and acceptable evidence of D.N.A test in a controversy regarding disputed paternity.
(iv) Such an understanding of Section 112 of the Evidence Act will help to make the presumption thereunder to be constitutionally valid and make the law fair, just and reasonable. Such an approach would help to avoid the consequence of the law being arbitrary, capricious, fanciful and oppressive. The vice of unconstitutionality under Articles 14 and 21 can certainly be attempted to be avoided by adopting such an interpretation. Such an interpretation will help the courts to do justice on the basis of facts and not perpetrate injustice on the basis of legal presumption.
BLOOD TEST AND DNA EVIDENCE : -
BLOOD TEST : - In Goutam Kundu v. State of West Bangal and Another (1993 (3) SCC 418) Apex Court held, inter alia, as follows:
"(1)That courts in India cannot order blood test as a matter of course;
(2)Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a 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 consequence of ordering the blood test; whether it will have the effect of branding 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.
Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449, paragraph 13, which is relevant for the purpose is quoted below:
“13. 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. The result of a genuine DNA test is said to be scientifically accurate. 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 bastardised 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 . "
Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449
"It was noted that Section 112 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') requires the party disputing the patronage to prove non-access in order to dispel the presumption of the fact under Section 112 of the Evidence Act. There is a presumption and a very strong one, though rebuttable one. Conclusive proof means proof as laid down under Section 4 of the Evidence Act. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women 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 of 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 the 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.".
In Dukhtar Jahan (Smt.) v. Mohammed Farooq (1987 (1) SCC 624) this Court held:(SCC p. 629, para 12):
"... 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 the 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."
In Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633, in which it has been held as follows:
“22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.”
Supreme Court of India
Nandlal Wasudeo Badwaik vs Lata Nandlal Badwaik & Anr on 6 January, 2014
We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.
The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice. (in none of the cases referred to above, this Court was confronted with a situation in which DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act.)
In a very important and recent judgment delivered by the Hon’ble Supreme court of
India in the case of Sharda v. Dharampal, where the core question was, whether a
party to a divorce proceeding can be compelled to a medical examination. In this case
the Respondent on the ground that such an order violates his right to privacy opposed
an order for DNA test. The three Judge Bench of the Hob’ble Supreme court held
that: “If for arriving at the satisfaction of the Court and to protect the right of a party
to the lis who may otherwise be found to be incapable of protecting his own interest,
the court passes an appropriate order, the question of such action being violative of
Art. 21 of the Constitution of India would not arise. The court having regard to Art,
21 of the Constitution of India must also see to it that the right of a person to defend
himself must be adequately protected.” It further held that if respondent avoids such
medical examination on the ground that it violates his/her right to privacy or for a
matter right to personal liberty as enshrined under Art. 21 of the constitution of India,
then it may in most of such cases become impossible to arrive at a conclusion.
Chinta Madhusudhan Rao v. Chinta Naga Lakshmi and another 01-6-2015
, Andhra Pradesh High Court held that the DNA test proposed to be conducted was essential to establish the rights of the parties. It was held in paragraphs 13 and 14 as under:
13. From the two judgments of the Supreme Court , it is clear that the Court has a wide discretion to direct a party to undergo any medical test including the DNA test. But, the discretion has to be exercised by the Court properly on being satisfied about the party requiring the Court to direct such a test to establish a strong prima facie case. The party against whom an order directing to undergo medical test is passed, is not permitted to contend that it offends his personal liberty. When the right of a party to the proceeding comes into conflict with the so-called right to privacy and personal liberty of the opposite party, the Court has to look into the competing interests of the parties.