scope and application of presumption of legitimacy of children under law of evidence.docx

7/29/2019 SCOPE AND APPLICATION OF PRESUMPTION OF LEGITIMACY OF CHILDREN UNDER LAW OF EVIDENCE.docx

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SCOPE AND APPLICATION OF

PRESUMPTION OF LEGITIMACY OF

CHILDREN UNDER LAW OF

EVIDENCE


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By

Rohit Nandakumar

2nd Semester

NUALS

INDEX

INTRODUCTIONPRICIPAL AND SCOPEPRESUMPTION OF LEGITIMACY FROM BIRTH DURING CONTINUANCE O F A VALIDMARRIAGEPRESUMPTION OF LEGITIMACY WITHIN 280 DAYS OF DISSOLUTION OF MARRIAGEPROCEEDINGS UN DER S.125 Cr.P.CPRESUMPTION OF LEGITIMACY FROM FILIATIONACCESSPROOF OF NON-ACCESSPRESUMPTION OF INTERCOURSE AND ITS REBUTTALEVIDENCE OF SPOUSE IF REQUIRES CORROBORATION


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BLOOD-TESTCONCLUSIONREFERENCE

INTRODUCTION

The presumption of legitimacy is a common law rule of evidence that states that a child born

within the subsistence of a marriage is deemed to be the child of the husband. Legitimacy

according to Blacks law dictionary refers to the status of a person born within a lawful

marriage or who acquires that status by later action of the parents; it is that legal kinship between

a parent and a child. Section 112 of the Indian evidence act, 1972 highlights the concept of

presumption of legitimacy of a child. This section of the Indian evidence act states that: 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.

PRINCIPLE AND SCOPE

The law strongly suggests in favour of legitimacy of the off-spring, as it is the birth that

determines the status of a person. Section 112 of the Indian evidence act, embodies a rule of law

that a child born during the continuance of a valid marriage or during the 280 days after its

dissolution shall be conclusive proof that it is legitimate, unless proved by a clear and strong

evidence that the husband and wife did not or could not have any access at any time when the


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child could have begotten .When a child born in a lawful wedlock, the law presumes that the

married couple had sexual intercourse between themselves. The principle underlying the rule

appears to be that 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, unless, as laid down in the latter part of the section, non-

access can be proved. The presumption is therefore rebuttable, but only by a very strong and

clear proof of non-access.

Section 112 is based on a well-known maximpater est quem nuptioe demonstrant(he is the

father whom the marriage indicates). The presumption of legitimacy is that, that child born of a

married woman is deemed to be legitimate, it thrown on the person who is interested in making

out the illegitimacy, the whole burden of proving it. The legitimacy of a child born in a lawful

wedlock can be displaced on by a strong preponderance of evidence, and not by a mere balance

of probabilities1.

The apex Court in the case Smt.Kanta Deer v. Poshi Ram, AIR 2001 SC 2266 has held that the

provision in S.112 of the Indian Evidence act itself provides an outlet to rebut the presumption of

legitimacy of child born under a valid marriage provided that it can be proved that the husband

and wife had no access to each other at the time when the child could have been begotten.

Access and non- access means the existence or nonexistence of opportunities for sexual inter

course. It does not mean actual cohabitation.

S.112 refers to the actual time of birth as the deciding factor and not to the time of conception;

the latter point of time has to be considered only to see whether the husband had no access to the

mother2. When sexual intercourse between husband and wife is proved, there is presumption

of legitimacy, even though the wife might have been living in adultery with another. Under such

circumstances, evidence of her sexual intercourse with others cannot be given.

S.112 has no application when maternity is in dispute and not paternity3.

1Goutam kundu v. State of W.B., A 1993 SC 2295,2301: 1993 Cri LJ 3233 ; Heera Singh V. State of U.P., 2005 Cri LJ

3222.

2Palani v. Sethu, 47 M 706: 81 IC 456.

3Nand v Gopal, A 1940 PC 93:1940 Kar 235: 72 CLJ 263.


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Presumption under S.112 can be drawn by any court civil, criminal or revenue. The section is

applicable to the applicable to the children of spouses professing all faiths.

If the people, especially the relatives, treat and acknowledge a person (appellant) as the

legitimate son of his father by a forging bond of matrimony, it is a strong piece of evidence to

hold that the person is the legitimate off spring of his father [K.Govina Raju v. K.Munniswami

Gounder, A 1997 SC 10,11].

PRESUMPTION OF LEGITIMACY FROM BIRTH DURING

CONTINUANCE OF A VALID MARRIAGE

The section follows the English law in adopting date of birth and not date of conception as the

test of legitimacy. Where there is no legal/Valid marriage there is no occasion for raising the

presumption under this section4.This section consists of two parts. The part deals with the birth

of a child during the continuance of a valid marriage between a man and woman ; the second

part deals with the birth of a child during 280 days after the dissolution of that marriage. The

man can prove that he had no access to his wife during the time when the child could have been

begotten. If he can prove it, the child will not be held to be his child.

Even though the presumption under S.112 is a strong one, it is not a conclusive one. The

presumption can be rebutted if it can be proved that the husband and wife had no access to each

other at the time when the child could have been begotten. Where a man and a woman is

cohabitating for a long time, there is a presumption of their being husband and wife and the

child born out of them being a legitimate child5.This is a presumption arising under s.114 of the

evidence act and not S.112 of the Act.

Ordinarily, the burden of illegitimacy lies on the person interested in making out the

illegitimacy6. However, where the plaintiffs have failed to prove to the satisfaction of the court

4Abdur Rahiman Kutty V. Aysha AIR 1960 Ker 101, 1959 Ker LJ 1049.

5Ram Chandra v. Ram surat AIR 1982 All 1355; Urmila Devi V. Session Judge 1981 CrLJ(NOC) 89(All); Mohammad

V. Kateeja 1981 Cr LJ(NOC) 77 (Ker); Sri Bala Dutt V. Indira Devi 1980 NOC 136 (All).6

Aprbal Singh V Narpal Singh AIR 1914 Oudh 42, 23 IC 972.


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that the mother of the alleged illegitimate sin Is the lawfully married wife of his father, the

burden of proving so will shift to the defendants7.

Section 112 of the evidence act says that where during the continuance of a valid marriage, if a

child is born, it is a conclusive proof for the legitimacy. No presumption of legitimacy can be

raised if the child was born before the marriage of the parents8.But if a child is born during

continuance of a valid marriage, It may immaterial as to how soon after the marriage the child

was born. In theunder mentioned case9

the two spouses had access to each other after

marriage for a number of days and the child was after six months of the marriage. The Himachal

Pradesh HC held that the child is legitimate child.

But where the child is born 175 days after first intercourse after the marriage, and access

of the husband to wife before marriage is not proved, the presumption under S.112 is not

available and the child is an illegitimate child10

.

PRESUMPTION OF LEGITIMACY WITHIN 280 DAYS OF

DISSOLUTION OF MARRIAGE

Under the second part of the section, a child born within 280 days from the dissolution of a valid

marriage, is presumed legitimate. The presumption under s.112 of the evidence act is applicable

not only during the subsistence of marriage but also if the child is born within 280 days of the

dissolution of the marriage, provided the mother remains unmarried11

.where a child is born

within 18 days after the dissolution of marriage , and the wife has not previously entered into a

marriage, there is a conclusive presumption that the husband is the father of the child. The

presumption can be displaced only by proof of non-access between the parties to the marriage,if,

according to the ordinary course of nature, the husband could not have been the father of the

7Ram Nath V Desraj Singh AIR 1935 oudh 80, ILR 10 Luck 499, 153 IC 349.

8Khwaja Ahmed Khan V Mst Hurmuzi Khanam AIR 1921 Oudh 81, 61 IC 177.

9Sharmila Devi V Shankar Das 1978 Cr LJ (NOC) 176, 1978 Hindu LR 719

10Ghanshyam Chaturvedi V Radha Devi 1982 MPLJ 487, Baldev Raj v Urmilla Kumari AIR1979 SC 879

11Vasu prabhavathi v. UN sukumaran (1990) 1 Ker LJ 65


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child12

. In a settled case where non access for 11 months was proved, the child was found

illegitimate13

.

Where the question in issue was whether the plaintiff was the legitimate son if a man to whom

his mother had admittedly been married to at one time, but by whom (according to the

defendant) she had been abandoned or divorced, it was held that the mere abandonment would

not dissolve the tie of marriage, and in such cases the presumption will prevail, unless proof of

non- access be successfully raised by the defendant.

The presumption of a child born within 280 days from the dissolution of a valid marriage, to be

presumed legitimate is subject to the condition that the woman remains unmarried. If the

woman remarries before the birth of the child, the second part f the section will have no

application. The child in such a circumstance will be presumed to be the legitimate son of the

second husband, unless it is shown that the second husband had no access to the wife at the time

in which the child was begotten14

.

PROCEEDINGS UNDER S.125 CrPC

Presumption of legitimacy would also rise in application under S.125 Crpc. In proceedings under

this section all admission of paternity of an illegitimate child by the alleged putative father are

irrelevant in view of clear wording of S.112, if the applicant mother fails to prove that she and

her husband had no access at the time when the child could have been begotten. Child born

during the pendency of suit for maintenance could not prove non-access and right of

maintenance held not forfeited on the ground od unchasity.

Where the petitioner claimed maintenance under S.125 Cr.P.C for her minor illegitimate child

from the respondent on the ground that the respondent had sexual relation with the petitioner as a

result of which the child was born but the respondent totally denied the same ,it would not be

12Janamma v. kuttappa 1959 Ker 366, (1959) ILR Ker 157

13Tikam singh v. Dhan kunwar (1902) ILR 24 All 445

14Palani v. sethu AIR 1924 Mad 677, ILR 47 Mad 706,81 IC 456; Moroti V. Bhag AIR 1923 Nag 43, 68 IC 465.


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safe to accept the evidence of the petitioner mother of the child without proper corroboration

when the paternity of the child was in dispute15

.

Where respondent claimed maintenance for herself and her minor daughter, the marriage

between the respondent and appellant husband was null and void in view of subsistence of first

marriage of the husband. The appellant failed to establish the proof of non- access, to overcome

the presumption. The respondant was not entitled for maintenance although the child born of the

wedlock was granted maintenance16

.

When the wife was pregnant when she left the house and there was no proof of her illicit relation

with anyone and a female child was born during the pendency of her petition for maintenance, it

was held that her daughter would also be entitled for maintenance17

.

PRESUMPTION OF LEGITIMACY FROM FILIATION

If an illegitimate son establishes the possession of a filiation, i.e. his parentage has been

acknowledged by his parents and accepted by habits and repute, a presumption of legitimacy

must be made on the basis of the acknowledgement of the relation. In such establishment of

possession of filiation, everything must be presumed in his favour.

ACCESS

In this rule accessand non-access mean the existence of opportunities for sexual intercourse;

It does not mean actual cohabitation18

. The section has to be applied with reference to the facts

and circumstances of each case in order to find whether there was an opportunity for intercourse

or not. The word access in this section means effective access. Physical incapacity to

procreate, if established amounts to non-access within the meaning of this section. If sexual

intercourse is proved between the husband and wife at the time of the child being conceived, the

law will not permit an equity whether the husband or some other man was more likely to be the

15Chaya v. K.G.Channappa gowda, 1993 Cri LJ 767,771 Ker

16Soloman v. jaini bai, AIR 2004 Mad 460 (462)

17Alpana v. mohanlal, 1993 Cri LJ 1008,1010,1011.

18Krishnappa v. venkatappai AIR 1943 Mad 632,(1943) 2 MLJ 108


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father of the child. Where the wife in the husbands house, the mere fact that the husband was

suffering from fever does not establish that the husband had no access to the wife19

.

The term access in s.112 has to be understood as an opportunity to procreate and not merely an

opportunity for sexual intercourse. Thus, where the husband has successfully undergone a

vasectomy operation and, thereafter a child is born, it has to be held that the husband and the

wife had no access to each other, the child so born is illegal child and the wife was living in

adultery20

. But if the evidence do not establish that the husband had successfully undergone a

vasectomy operation, the above inference cannot be applied.

The case of a married woman stands on a different footing from that of a spinster or a widow

who may be living as a mistress with somebody. For a mistress, it may be open to prove that the

real father of the child, born during the period of her concubinage, is different from her

paramour. In such a case, the presumption which would naturally arise, in respect to the paternity

of the child in favour of the paramour, is capable of being rebutted. However , the presumption

of legitimacy arising in favour of a child born during the continuance of valid marriage, when the

parties to the marriage could have access to each other at any time when the child could have

been begotten, could not be rebutted.

In a settled case, where sufficient evidence has been brought on record to show that the parties

had access to each other immediately after their marriage, the appellant was held to be the father

of the child.

Where there was access and ample opportunity for an intercourse, a strong inference of

cohabitation between the husband and wife must arise, which mere denial by either husband or

wife cannot dispel. Where the husband alleges that the wife was living seperately from him and

the child begotten by the wife in that period was through another man, but fails to establish his

non-access to his wife during this period, there is conclusive presumption under S.112 of the

evidence act, that the child is the legitimate child of the parties.

19Kishan gopal v. saraswathi 1979 WLN (UC) 555

20Chandramathy v. pazhetti Balan AIR 1982 ker 68,, 1981 Ker LT (SN) 104


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PROOF OF NON-ACCESS

The presumption contemplated under S.112 of the evidence act is a conclusive presumption of

the law. It can be displaced only by proof of non-access between the parties to the marriage at a

time when the child could have been begotten. The person alleging illegitimacy must

conclusively establish that the husband had no opportunity of intercourse with the wife at a time

when, according to the ordinary course of nature, the child could have been begotten. Non-

access may be proved, by means of such legal evidence as is admissible to prove a physical

fact. But every presumption has to be made in favour of legitimacy of the child born in lawful

wedlock, and the onus of proving non access is heavy on the person who alleges the illegitimacy.

The law requires proof of non-access, a negative fact. If there is hardly any evidence worth the

name of proof of non-access to husband the presumption under S112 cannot be raised. Thepresumption of legitimacy cannot be displaced and the contention of non-access accepted on a

mere balance of probability. The standard of proof required is similar to the standard of

proof required to establish the guilt of an accused in a criminal case. Even where it is shown that

the wife is living in adultery, it is insufficient to prove non-access.

The presumption of legitimacy of children is so highly favoured that the proof of non-access

should be clear and satisfactory and not be lightly repelled. It is not to be broken in upon or

shaken by a mere balance of probability; the evidence for the purpose of repelling it must bestrong, distinct, clear, satisfactory and conclusive. The fact that the husband had been living

with another women for a number of years does not amount to clear proof of non access nor is

the proof that the husband and the wife were living separately in two houses. But, ifthe husband

establishes that he had no sexual intercourse with his wife, he need not prove further that he had

no opportunity. Even ifthe husband had an opportunity for intercourse, if the husband

establishes that he had no sexual intercourse with his wife, he thereby establishes non-access

within this section21

.

The non-access has to be proved like any other physical fact and it may be established both by

direct and circumstantial evidence of an ambiguous character. However, unless such evidence is

21Nga Tun E v. Mi chou AIR 1914 UB 36,37,16 Cr LJ 34. Bhagwan bhaksh singh v. Mahesh Baksh singh AIR 1935 PC

199, 1935 AWR 1935, 159 IC 325


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forth coming, it will not be possible fora court to believe it to be probable that there was no

access. The proof of non-access must be clear and satisfactory.

The fact that the husband instituted proceeding for the custody of his wife, cannot conclusively

show that during the period of litigation, the husband had no access to his wife22

.

As a child born of a married women is, in the first instance, presumed to be legitimate, such

presumption is not to be rebutted by circumstances which only create doubt and suspicion, but it

may be wholly removed by proper and sufficient evidence showingthat the husband was :

a) Incompetentb) Entirely absent so as to have no intercourse or communication of any kind with the

mother

c) Entirely absent at the period during which the child must, in the course of nature, havebeen begotten or

d) Only present under such circumstances as afford clear and satisfactory proof that therewas no sexual intercourse.

Such evidence as this puts an end to the question and establishes the illegitimacy of the

child of a married woman. Al these similar facts are receivable in evidence in proof of non-

access.

To brand a child, born in a lawful wedlock, with illegitimacy on the ground of physical

incapacity of the husband to procreate, it is necessary, in the first place, to prove the precise age

of the husband at the date of the conception and in the second place, to negative the possibility of

premature virility at that age owing to precocious development.

It is not quite possible for children born to a married woman to be legally held to be the

progeny of a paramour. If the paramour is keeping the wife of another person as his concubine,

and the husband, is driven out of the house and rigidly kept away from approaching the wife so

that he may not interfere with the immoral activities of the paramour. In such a case, the

paramour may well be held to be the father of the children born thereafter though the marriage is

22Dalipa v. Bala 49 PLR 1914, 137 PWR 1914, 22 IC 409, AIR 1914 Lah 106 (DB)


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not dissolved23

. It is open in a particular case to show that despite the subsistence of a valid

marriage, the husband had no access to his wife at the relevant period and her children were born

to the paramour24

. In such a case, there is no legal bar to the child claiming maintenance against

its mothers paramour, even though the mothers marriage has not been dissolved25

.

PRESUMPTION OF INTERCOURSE AND ITS REBUTTAL

Where evidence of access is given, it requires the strongest evidence of non-intercourse or other

proof beyond reasonable doubt, to justify the judgment of illegitimacy. Adultary on the wifes

part, however clearly proved will not have this effect, if the husband had access to the wife at a

time when the child could have been begotten, unless there is a positive proof of non-intercourse.

From the evidence of access, the presumption of intercourse is strong unless it has been

established that there was no intercourse or chance for an intercourse at the time when the child

was begotten.

The presumption of intercourse and access still exists where the parties are living apart from

each other by mutual consent, though the presumption is rebuttable by proof of non-access. But

is otherwise where they are separated by a decree of court , for in such cases they

presumption is that they are obeying the decree. However by the terms of the section there must

be a continuance of a valid marriage.

The presumption under S.112 of the evidence act can be rebutted only in the manner

contemplated under S.112. if non-access is not proved, the presumption becomes

irrebuttable.

EVIDENCE OF SPOUSE IF REQUIRES CORROBORATION

23Sreenivasan v Kuribau AIR 1957 Mad 160, 1967 Cr LJ 369.

24Kalla Maistry V Kanniammal AIR 1963 Mad 210; Munuswamy V. Usha Rani 1975 Mad LW (CR) 240 Mad.

25Dr. Chathukutty V. janaki amma 172 KLJ 12,14,1972 KLT 110,1972 Cr LJ 696(Ker)


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The rule that the evidence of the mother in regard to paternity of her child need to be

corroborated is not a statutory requirement in India. It is only a rule of prudence and caution

intended to save persons from being faced with irresponsible charges of paternity of children. It

is settled law that matrimonial offences like, desertion, must be proved beyond reasonable

doubt. Hence though it is not required as an absolute rule of law, the courts insist upon

corroborative evidence, unless its absence is accounted for the satisfaction of the court. The

mothers in cases erlating to paternity and maintanace under S.125 CrPC, can be highly

interested and t would be unreasonable to accept such statements as proofs, without

corroboration. Proof of access can be treated as corroborative evidence in such cases.

BLOOD-TEST

Blood grouping test is a perfect test to determine the question of disputed paternity and can be

relied upon by the courts as circumstantial evidence, which ultimately excludes a certain

individual as a possible father of a child.it is increasingly being made use in the recent years in

disputed paternity proceedings.

The value of the test is however limited.

In India, there is no special statute and there is no provision either in the CrPC or in the

evidence act, empowering courts to direct such tests to be made. Similarly as pointed out by

Raghava Rao J, in venkateswaralu v Subayya , there is no procedure either in the CPC or the

Evidence act, which provided for a blood test being made of a minor and his mother when his

father is disputing the legitimacy of the minor. It was held that if the parties are unwilling to

submit such a test, the court had no power to direct them to submit themselves to it. The same

views were taken in Vasu v Santha by Kerala HC and inHargobind Soni v Ramdulariby

Madhya Pradesh HC. It was, however, observed that at the most, the courts can draw an adverse

inference on account of refusal to submit to blood test. NO PERSON can be compelled to give

a sample of his blood for analysis against his/her blood.

In India,blood test does not prove non-access at the relevant time when the child could

have been conceived and it has been held in a case of the Kerala HC that the courts cannot


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legally decide this point on the basis of the report of the blood test. However, the same HC

in a case where the child was born 220 days after the marriage and where the woman

admitted that she didnt know her husband before marriage and the woman was found to

have conceived at the time of marriage, considered the evidence of blood test and decided

the question of paternity of the child on that basis26

.

Blood test is an important piece of evidence to determine the question of paternity of a child.

Although, by a blood test, the paternity of a child cannot be positively established, yet it can

certainly exclude an individual as the father of the child. There for while the negative finding in a

blood test is definite, the positive finding only indicates a probability.

CONCLUSION

Article 21 of the Indian constitution, confers the fundamental right of life and personal liberty. It

confers a life full of dignity and honour. In India, the chastity of the women and paternity of

children have great importance. No person, in India, will tolerate or cherish or like to be called a

bastard. Legitimacy of the paternity of a child or a person is part of the dignity and honour to

which each man and woman is entitled according to law. The law strongly suggests in favour of

legitimacy of the off-spring, as it is the birth that determines the status of a person. Section 112

of the Indian evidence act, embodies a rule of law that a child born during the continuance of a

valid marriage or during the 280 days after its dissolution shall be conclusive proof that it is

legitimate, unless proved by a clear and strong evidence that the husband and wife did not or

could not have any access at any time when the child could have begotten.

26(1974) ILR Ker 295


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REFERENCE

Blacks law dictionaryVakilno1.comModern law of Evidence Adrian KeaneSarkars Law of EvidenceSir John Woodroffe & Syed Amir Alis Law of Evidence

scope and application of presumption of legitimacy of children under law of evidence.docx

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