Faculty of Law, Aligarh Muslim

University

2021

Law of Evidence
(End-Term Assignment)
On
‘Section 112: Presumption as to legitimacy’

Submitted to
Prof. Javaid Talib

Submitted by
Shrishti Thenuan
19BALLB013
BA LLB VI Semester (Section A)
Enrolment No.- GK1816
 Synopsis

1. Introduction

2. Intention of the legislature

3. Presumption of legitimacy

4. Presumption of paternity

5. Section 112 and the DNA Technology Bill

6. Cases

7. Difficulties in DNA Tests

8. Recent Cases

9. Conclusion

10. Bibliography
 Introduction

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 satisfactorily proved.

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 assignment 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.
Section 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.1

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.

1
The Indian Evidence Act 1872 (Act 1 of 1872)
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.2 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.

2
Ratanlal and Dhirajlal, ‘The Law of evidence’ (Lexis Nexis, Haryana, 27th edn.)
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 couple.

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.3

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.

3
185th Law Commission Report of India.
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 ethical surrogacy.

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 childbirth.

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 Bengal4. In the later decision
of the Apex Court in Nandlal Wasudeo Badawaik v. Lata andlal Badwaik5, 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

4
AIR 1993 SC 2295.
5
AIR 2014 SC 576
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 interest.

Hence, the Supreme Court made a conscious departure from the law laid in Gautam Kundu
v. State of West Bengal6 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 Roy7 on a similar ground that the
parties had opposed to the DNA test only after the results were obtained.

6
Supra note 5
7
AIR 2014 SC 680
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,[8] 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.8

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.9 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 scientific methods.

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

8
AIR 2010 SC 263
9
Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633.
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 same.10

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.

10
Mahendra Meena v. Mamta, 2019 Scc Online Raj 584
Recent Cases
Nandlal Wasudeo Badwaik vs.Lata Nandlal Badwaik and another,
(2014) 2 SCC 576
The Supreme Court held as under:

“15. Here, in the present case, the wife had pleaded that the husband had access to her and,
in fact, the child was born in the said wedlock, but the husband had specifically pleaded that
after his wife left the matrimonial home, she did not return and thereafter, he had no access
to her. The wife has admitted that she had left the matrimonial home but again joined her
husband. Unfortunately, none of the courts below have given any finding with regard to this
plea of the husband that he had not any access to his wife at the time when the child could
have been begotten.

16. As stated earlier, the DNA test is an accurate test and on that basis it is clear that the
appellant is not the biological father of the girl child. However, at the same time, the
condition precedent for invocation of Section 112 of the Evidence Act has been established
and no finding with regard to the plea of the husband that he had no access to his wife at the
time when the child could have been begotten has been recorded. Admittedly, the child has
been born during the continuance of a valid marriage. Therefore, the provisions of Section
112 of the Evidence Act conclusively prove that Respondent 2 is the daughter of the
appellant. At the same time, the DNA test reports, based on scientific analysis, in no
uncertain terms suggest that the appellant is not the biological father. In such circumstances,
which would give way to the other is a complex question posed before us.

Narayan Dutt Tiwari vs. Rohit Shekhar, (2012) 12 SCC 554

In this case, Rohit Shekhar, the Respondent, had filed a suit with the High Court of Delhi,
seeking a declaration of paternity from prominent politician Narayan Dutt Tiwari, the
Petitioner. In appeal, the Supreme Court considered an order passed by a Division Bench of
the High Court of Delhi upholding an order by a Single Judge of the Delhi High Court in an
interim application filed by the Petitioner. The order of the single Judge directed the Petitioner
to permit a DNA test to be conducted on him. The Supreme Court, while affirming the order of
the Division Bench passed certain directions to ensure the confidentiality of the Petitioner. The
orders before the Division Bench of the High Court dealt with the issues of implementability
and enforceability of the Single Judge’s order directing a DNA test and addressed the main
impediments to the enforceability of such order. These impediments included the potential
violation of the right to privacy of the Petitioner, if compelled to take the DNA test. However,
on balance, the High Court, considered the Respondent’s right to know his paternity would
take primacy.
Conclusion
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 couples in the Surrogacy Regulations Bill, 2019, is
indication of the same.

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.
Bibliography

➢ The Indian Evidence Act 1872 (Act 1 of 1872)

➢ Ratanlal and Dhirajlal, ‘The Law of evidence’ (Lexis Nexis, Haryana,
27th edn.)
➢ BK Parthasarathi v. Government of AP, AIR 2000 AP 156;
➢ Suchitha Srivatsa v. Chandigarh Administration (2009) 9 SCC 1.
➢ Mahendra Meena v. Mamta, 2019 Scc Online Raj 584.
➢ Dalip Singh v. Ramesh, 2019 Scc Online Raj 2720.
➢ Navtej Singh Johar and Ors. V. Union of India, AIR 2018 SC 4321.
➢ CKP v. MP, 2019 Scc Online Del 8077
➢ Nandlal Wasudeo Badwaik vs.Lata Nandlal Badwaik and another,
(2014) 2 SCC 576
➢ Narayan Dutt Tiwari vs. Rohit Shekhar, (2012) 12 SCC 554