BY ANBUCHEZIAN (HC21037)
• 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 any
man, or within two hundred and eighty
(280) days after its dissolution, the
mother remaining unmarried…”, it is
conclusive proof of its legitimacy 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.
The law does not presume dishonorable or immoral actions unless
conclusive proof can be produced for the same.
Therefore, section 112 is based on the presumption of public morality
and public policy .
LOOPHOLES IN SECTION 112 OF THE EVIDENCE
ACT.
The establishment of paternity under both,
civil and criminal law, is extremely important.
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.
CONCLUSIVE PROOF
Section 4 of the Act, lays down three degrees of presumption –
‘May presume’, ‘Shall presume’, and ‘Conclusive proof’. It must
be noted that section 112 of the Act uses ‘conclusive proof’
and thus section 4 and section 112 must be read together.
Therefore, if the two requirements of section 112 are proven, it
shall be considered as conclusive proof of legitimacy, which
means that further evidence to disprove said fact may not be
given. The legitimacy of such a child cannot be rebutted
unless non-access can be proved. This creates problems for
the party disputing the paternity of the child.
S. 4 s.112
EXCEPTION OF “NON-ACCESS.
The terms access and non-access refer to the existence and non-
existence of opportunity for sexual contact.
In other words: The term access used in section 112 of the Indian
Evidence Act refers to the existence of opportunity of marital
intercourse. However, non-access can be established if it is proved
that the husband was physically incapable of procreating.
OBJECT OF SECTION 112 OF THE
INDIAN EVIDENCE ACT
The object of section 112 of the Indian Evidence Act is:
1.To determine the legitimacy of a child for the purpose of succession
and inheritance in the father’s property.
2.Legitimacy determines the right of maintenance.
DNA TESTING TO ASCERTAIN PATERNITY
DNA Tests are conclusive evidence admissible under the Indian
Legal System. The introduction of DNA technology, however, has
faced extensive criticism and has been said to violate Article 21
(Right to Privacy) and Article 20(3) (Right Against Self-Incrimination)
of the Indian Constitution.
RIGHT TO PRIVACY – ARTICLE 21
In Govind Singh v. State of Madhya
Pradesh, the Supreme Court held that a
fundamental right must be subject to
restriction on the basis of compelling
public interest. Thus, Right to Life and
Liberty, which includes Privacy, is not
absolute. And it is on this basis that the
constitutionality of the laws affecting Right
to Life and Personal Liberty are upheld by
the Supreme Court which includes
medical examination.
RIGHT AGAINST SELF-INCRIMINATION –
ARTICLE 20(3)
Medical tests which involve giving blood do not involve any
exchange of ‘personal’ knowledge and are a mechanical process,
they do not violate Article 20(3).
GOUTAM KUNDU VS STATE OF WEST BENGAL
HELD:
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.
REFUSAL OF WIFE TO COMPLY WITH A
DNA TEST.
In Dipanwita Roy vs Ronobroto
Roy, the Supreme Court held
that it would not be incorrect to
issue direction to the wife to
undergo a DNA test to
determine the parentage
regarding the case challenging
her infidelity. And if the wife
refuses to undergo the test of
the child to determine
parentage, an adverse
presumption can be drawn
against the wife.
Section 113 A deals with hardcore crime that is Presumption as to
abatement of suicide by a married women and Section 113 B deals
with the presumption as to dowry death.
ABETMENT AS TO SUICIDE BY A
MARRIED WOMEN
Section 113A deals with the
presumptions of abetment
of suicide of a married
woman either by her
husband or any of his
relatives.
(i) The incident of suicide was committed within a period of seven years
from the date of her marriage; and
(ii) Her husband, or his relative, has subjected her to cruelty as according
to the Section 498A of IPC.
Suicide within years
CHHAGAN SINGH V STATE OF MADHYA PRADESH
Facts: The accused beat the victim for alleged rice
theft, leading to the victim's suicide.
Fact in Issue: Determining if the accused is
responsible for the suicide and if Section 113A
applies.
Arguments: Prosecution cites the accused's actions,
while the defense argues lack of cruelty evidence.
Evidence: Accused's claim, absence of cruelty proof,
and circumstances of the suicide.
Judgement: Accused acquitted; insufficient evidence
of cruelty, and Section 113A doesn't apply without
established nexus between cruelty and suicide.
Emphasizes careful application of
legal presumptions. Only applies to husband or
relative who has treated the women with cruelty.
NILAKANTHA PATI V STATE OF ORISSA
Facts: Accused, after receiving dowry, later
demanded money for a house. When the victim
couldn't arrange it, she faced torture and died in
1986.
Fact in Issue: Whether the accused is guilty under
Section 113A for abetment of suicide?
Arguments: Accused reasoned that the
presumption is rebuttable; court found his
arguments relevant, leading to acquittal.
Evidence: Dowry benefit, accused's demand,
victim's torture, and death in 1986.
Judgment: Court deems the presumption under
Section 113A as rebuttable. Accused acquitted as
he successfully disproved the presumptions,
emphasizing the situational relevance of
legal provisions.
The section 113B of the Indian
Evidence Act deals with the dowry
death. Section 113B states that:
Section 113B: If a woman has faced
cruelty or harassment related to
dowry shortly before her death,
and the question is whether
someone committed her dowry
death, the court shall presume that
the person caused
the dowry death.
MANGAL RAM & ANOR V STATE OF
MADHYA PRADESH
Facts: Wife's suicide within five years; lived with
parents for 2-3 years. Returned to matrimonial home,
committed suicide within a month. Harassment claims Suicide within years of
by husband and in-laws unproven beyond doubt. marriage
Fact in Issue: Determining if the husband can be
presumed guilty in the wife's suicide.
Arguments: Lack of clear evidence for harassment
during the critical month; presumption against the
husband unjustified.
Evidence: Wife's suicide, residence history, short stay
in matrimonial home, insufficient proof of harassment.
Judgment: Presumption against the husband not
justified without clear evidence. Court stresses the
need for conclusive proof beyond reasonable
doubt in such cases.
PREM SINGH V. STATE OF HARYANA
Facts: The unnatural death of a married woman within 7
years of marriage. Evidence includes harassment by
the husband for dowry, medical findings of death by
smothering, and unexplained injuries on the deceased.
Issue: Determining if the presumption of dowry death
applies to the husband.
Arguments: Harassment, unnatural death, and
unexplained injuries support the presumption.
Evidence: Dowry harassment, cause of death, lack of
explanation for injuries.
Judgment: Presumption of dowry death justified; High
Court's acquittal reversal deemed appropriate given
the compelling evidence.
