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Evidence Presentation

The document discusses presumption of legitimacy under Section 112 of the Indian Evidence Act of 1872. It makes the following key points: 1. Section 112 presumes that a child born during a valid marriage or within 280 days of dissolution of marriage is conclusively legitimate, unless non-access between the parties can be proven. 2. The sole exception under the law is proof of non-access, which refers to lack of opportunities for sexual intercourse. However, this exception does not cover all possible situations where paternity may be disputed. 3. The presumption of legitimacy is considered conclusive proof under Section 4 of the Indian Evidence Act. As such, no further evidence can be allowed to disprove it.

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31 views9 pages

Evidence Presentation

The document discusses presumption of legitimacy under Section 112 of the Indian Evidence Act of 1872. It makes the following key points: 1. Section 112 presumes that a child born during a valid marriage or within 280 days of dissolution of marriage is conclusively legitimate, unless non-access between the parties can be proven. 2. The sole exception under the law is proof of non-access, which refers to lack of opportunities for sexual intercourse. However, this exception does not cover all possible situations where paternity may be disputed. 3. The presumption of legitimacy is considered conclusive proof under Section 4 of the Indian Evidence Act. As such, no further evidence can be allowed to disprove it.

Uploaded by

cifex10357
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© © All Rights Reserved
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PRESUMPTION

OF LEGITIMACY
Presumption of legitimacy

■ Section 112 of the Indian Evidence Act, 1872 relates to the legitimacy of a child born
during wedlock.
■ The law presumes that if a child is
– “born during the continuance of a valid marriage between his mother and a man, or
within 280 days after the dissolution of marriage and the mother remains
unmarried, this shall be conclusive proof that it is the legitimate child of that man.
■ Unless it can be proven that the parties to the marriage did not have any access to one
another.
■ The legislative spirit behind this section seeks to establish that any child born during a
valid marriage must be legitimate.
Object of Section 112:-
The object of section 112 of the Indian Evidence Act is:
To determine the legitimacy of a child for the purpose of succession and inheritance in the
father’s property.
1. Legitimacy determines the right of maintenance.
Loopholes in Section 112 of the
Evidence Act
■ The law presumes the legitimacy of a child born during a valid marriage as conclusive.
■ The only exception under the law is non-access between the parties.
■ This “non-access” refers to the non-existence of opportunities for sexual intercourse.
This creates a legal lacuna with respect to cases where paternity may be disputed even
when the parties had “access” to each other.
■ The exception to this law, i.e. “non-access” is not wide enough to cover all possible
situations under the ambit of this law. Thus, the law is a draconian law based on
morality with no relevance in the modern era.
Conclusive Proof

■ The presumption raised under section 112 of the Indian Evidence Act is the conclusive
proof under section 4 of the Indian Evidence act. Therefore, it must be read together.
■ When a fact is declared conclusive proof of another, the court shall not allow further
evidence to disprove the fact.
■ This case generally occurs when it is in the interest of society or against the
government’s policy.
EXCEPTION OF “NON-ACCESS”

■ Section 112 of the Act provides a very limited exception to the presumption of
legitimacy.
■ A valid marriage may not be conclusive proof if it can be shown that the parties to the
marriage had no access to each other during time of conception. This has to be proved
beyond reasonable doubt and not just mere balance of probabilities
■ As previously stated, the section is based on a presumption of moral behavior but the
purpose of law is to provide justice in a fair and efficient manner. So when moral
principles become the basis for a law, it defeats this basic purpose.
Is a DNA test admissible under section
112 of the Indian Evidence Act?
Generally, a DNA test is not permissible by the court in India as it results in the violation of the right
to privacy.
■ The Supreme Court in Goutam Kundu vs State of West Bengal has laid down the following
rules for blood test to prove paternity:
■ 1. The courts in India cannot order for the blood test as a matter of course.
■ 2. The application for blood tests cannot be entertained.
■ 3. There must be a strong prima facie case that the husband should establish non-access to dispel
the presumption under section 112 of the Indian Evidence Act.
■ 4. The court must examine the consequence of ordering a blood test, whether it will have the
effect of branding the child as a bastard and the mother as unchaste.
– 5. No one can be compelled to give blood samples for analysis.
■ Presently, the Court has the power to demand a person to undergo medical tests.
However, under section 112 of the Act, the Court can only give such orders if non-
access is proved.(Sharda v. Dharmpal)
Thank you

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