PROOF OF

NON-ACCESS UNDER
SECTION-112
OF
INDIAN EVIDENCE ACT
-CASE ANALYSIS

SUBMITTED BY :-
D.SUMANTH
18LLB120
SEM-5, SEC-B

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INTRODUCTION:-
Section 112 of Indian Evidence Act, 1872- 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.
The section is based on the principle that when a particular relationship such as marriage, is
shown to exist, then its continuance must prima facie be presumed. According to this section
the fact that any person was born
1. During the continuance of a valid marriage between his mother and any man, or
2. 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 the parties had no
access to each other at any time when he could have been begotten, any fact out of these two
facts is sufficient to establish its legitimacy, and shift the burden of proof to the party, seeking
to establish the contrary.

RESEARCH QUESTION :-
1. Whether the Court can direct the respondent to submit himself to the DNA test?
2. Whether a person be compelled to go through DNA test?
3. Whether there are any contradictions in Supreme Court decisions regarding this?

OBJECTIVE OF THE STUDY :-

The purpose of carefully delivering the concept of proof of non-access under Section-112 of
Indian Evidence Act.
1. To make a study on concept of proof of non-access under Section-112 of Indian
Evidence Act.
2. To understand the subject through contemporary judgements

RESEARCH METHODOLOGY :-
Doctrinal research includes :-
1. Descriptive study
2. Explanatory study
3. Analytical study
4. Comparative study

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Sources of Study:-
Primary source:- Indian Evidence Act 1872, Authorised Journals, Indian constitution 1950 ,
Judgements, Procedural Laws.
Secondary sources :- Ratanlal and Dhirajlal Law of Evidence, Articles and Sarkar’s law of
evidence.

SCOPE OF THE STUDY :-

My study is confined to the sections apposite to the concept of proof of non-access under
Section-112 of Indian Evidence Act.

SIGNIFICANCE OF THE STUDY :-

Through this research :-
1. One can easily appreciate the applicability of procedure.
2. One can get the landmark latest judgements in this concept.

LITERATURE REVIEW :-
[Author’s name], [Title of the article], [Journal Volume Number] [NAME OF THE
JOURNAL (abbreviated)] [Starting Page of the Article], [Pages Cited] [(Year)].

Mahindra Agatrao Lomte, Dr. SR Katari, A Critical analysis of legal presumption of

legitimacy of child under section 112 of Indian Evidence Act, 1872, Volume 3; Issue 2;
Page No. 50-52, March 2017.

In this article the author expounded the Section 112 of Indian Evidence Act, 1872. Firstly,
author tried to elucidate the concept of conclusive proof, legitimacy and non-access under the
Section- 112 of Indian Evidence Act, 1872. Starting with legitimacy of the child author tried
to give a comprehensive study by explaining with the help of a case law Gautam Kundu v.
State of West Bengal wherein the apex court held that the
1. That Court’s 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 of blood test cannot be entertained.
3. There must be 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 consequences of ordering
the blood test, whether it will have the effect of branding a child as bastard and the
mother as an unchaste woman.
5. No one can be compelled to give sample of blood for analysis.

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Gunjan Gupta, Conclusive Proof Of Legitimacy Of Child: Silently Wiping Age-Old Law-
Legal Analysis And Justification-ILI law Review.

The author tried to explain the Newly articulated dichotomy by virtue of judicial acumen
in Dipanwita Roy, a recent decision of the Supreme Court, a distinction is made in two
categories of cases, viz., where divorce is sought by the husband on the ground of
infidelity of the wife and the cases where the legitimacy of the child is in issue. What has
have been done by the Supreme Court in the afore-stated pronouncement is that though it
may not be permissible to subject a child to DNA test for the purpose of ascertaining his
legitimacy due to embargo as envisaged under section 112 of the Evidence Act, the same
may, however, be justified in cases of divorce based on infidelity of wife. By so doing,
the court did exactly that what was explicitly forbidden by age-old classic law. By means
of this paper an analysis of law and precedent is carried out to see legal basis and
justification of such dictum.

Presumption As To Legitimacy In Section 112 Of India Evidence Act To Be Amended-The

Indian Law Institute.

In this article the author made deep research on Non- access Section 112 requires the
party disputing the paternity to prove non-access in order to dispel the presumption.
“Access” and non-access mean the existence or non-existence of opportunities for sexual
intercourse; it does not mean actual cohabitation. It is rebuttable presumption of law
under Section 112 that a child born during the lawful wedlock is legitimate and that
access occurred between parents. This presumption can only be displaced by a strong
preponderance of evidence, and not by mere balance of probabilities. 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 highly favoured by law it is necessary that proof of non-access must be clear
and satisfactory.
Section 112 is based on presumption of public morality and public policy. The rule of
presumed legitimacy as embodied in this section is rather founded in decency, morality
and policy. This conclusive presumption can be dispelled only by nonaccess of the
parties, and that not-access required to be proved not on balance of probabilities but on
the strong preponderance of evidence. No other evidence is admissible to rebut this
conclusive presumption. The presumption is in favour of legitimacy and against bastardy.
Provisions of this section apply only to lawful marriage.

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Srishti Vatsa, Critical Analysis of Section 112 of The Indian Evidence Act, 1872.

In this article the author expounded the maxim “pater est quem nuptiae demonstrant” has
gained dominant recognition today which has resulted in the formation of the rule of
evidence mentioned under Section 112 of the Evidence Act.¹ It encourages a child’s
welfare so as to ensure that a child born out of a wedlock be treated as the child of the
man who was at the time of the child’s conception, the husband of his/her mother. Hence,
this presumption cannot be discarded by the mere chances of probabilities or any
circumstance creating doubt.
The author also tried to elucidate that with the courts swaying both ways over the course
of years, it is integral to have a rigid law in place which deals with the conclusiveness of
DNA tests. With a weak legislation in place that has innumerable ambiguities within it, it
is essential to delve into the scope and extent of Section 112 today, keeping in
consideration the strong evidential value DNA tests have. At the same time, the tests
cannot be ordered as a matter of routine due to the extenuating factors mentioned. Hence,
there is an imperative need for a legislation dealing with the issue at hand.

Anushna Satapathy, Presumption as to legitimacy of a child under section 112 of the

Indian Evidence Act, Ipleaders.
This article is clear in explaining the various provisions of the Indian Evidence Act
related to the concept of Presumption by Indian Judicial System and also The section is
based on the presumption of morality and may, in certain circumstances, hold the party
disputing paternity unjustly accountable. Since the question of legitimacy is an extremely
important one in cases of custody, maintenance etc., it is impractical for the section to
provide such a limited exception.
As previously stated, the section is based on a presumption of moral behaviour. However,
one cannot completely disregard the possibility of such behaviour, in which case the party
disputing the paternity is being held unjustly accountable. The purpose of law is to
provide justice in a fair and efficient manner. When moral principles become the basis for
a law, it defeats this basic purpose.
This can be illustrated with the help of an example. When two people are getting a
divorce, one of the parties may be unjustly compelled to pay child support even though
there is no biological relation between the party and the child. Thus, the scope of this
exception is too restrictive and limited for the proper implementation of law.

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TABLE OF CONTENTS :-
1. INTRODUCTION
2. SECTION 112 OF INDIAN EVIDENCE ACT
3. ANATOMY AND INTREPRETATION OF SECTION 112
4. PROBLEMS AND INCONSISTENCY
5. CONCLUSIVE PROOF
6. LEGITIMACY OF CHILD
7. MEDICAL EXAMINATION IN THE NATURE OF DNA
8. NON-ACCESS
9. CONCLUSION
10. RECOMENDATIONS
11. BIBLIOGRAPHY

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