Introduction

According to section 112 of the Evidence Act , 1872 , mentions that the child born during a
marriage is taken as a conclusive proof for the legitimacy to be determined , there is a time
period of 280 days given after dissolution of marriage, another criteria is mother should
remain unmarried even after divorce and the husband should not have any contact with his
wife during the given time. But this age old thought has been changing which gives a new
perspective. Especially in the new Supreme Court judgement which held that it is not wrong
to direct the wife to undergo DNA test to ascertain the paternity of the child, if the husband
suspects her due to infidelity , non-acceptance of the wife can be open for adverse and open
presumptions. We shall ascertain the legal thought and paternity in this paper .

Section 4 - Conclusive Proof- if one particular fact is deemed to be proved the other fact
shall also be assumed to be proved . This shall not let the Evidence of the other fact to be
disproved . In simple words presumptions are those assumption and rules which discharges
one party from the obligation of the other Party with presumed law or fact till the assumed
party shows evidence that the assumption is not possible . The main point of assumption is
rebutted but in case of conclusive presumption once the presumption is drawn there shall be
no scope of rebuttal .

When read along with Section 112 and Section 4 of Indian Evidence Act , 1872 . Every child
born while a valid marriage is conclusive is assumed to be a legitimate child unless the
parties can clearly prove that they did not have any sought of contact with each other during
the time .

Exception of Non-access
Section 112 of Indian Evidence Act restrains the scope of legitimacy of the child. The
validity of the marriage will not be deemed conclusive if non access can be proved. But this
has to be proved beyond any probabilities of doubt.

The presumption is based on morality , culture and mind-set of our country .The main aim is
to provide efficient and just result and uphold the dignity of a woman , child and the judicial
system .But many times there need to be a proper balance which has to be struck to defeat the
purpose of law .

Eg : Sometimes in spite of the child not being the biological child of the parent one party is
forced to pay the child support during a divorce hence this perspective is extremely
restrictive .

Defining a child in India

The word child has been described in different ways considering the different situations . But
in case of the present situation it is essential to comprehend if a child becomes a major he has
all the rights to undergo his DNA test to determine his paternity and if the mother of the
child refuses , then negative inference is allowed to be dream against his mother . Hence it is
sensible for a child to and a major person to be involved as a "major ".

Below 18 years

1. The word child has been defined in section 2( b) of Domestic Violence Act , 2005
2. "child” has been defined under Protection of Children from Sexual Offences Act
( POSCO)to be a person below 18 years in section 2(d)
3. Section 125 (1) of code of Criminal Procedure ,1973 explains " minor" is a person
who is not deemed to have attained majority .
4. Section 82 and 83 of Indian Penal Code talks about child committing an offence
below 7 years is forgiven but if the child has committed the offence between the age
7-12 with maturity he is not forgiven he will be sent to juvenile.
5. Majority Act ,1875 talks about how to calculate a child's birthday according to
English calendar
6. The word child has been defined in Section 12 of the Limitation Act , 1963.
Medical Examination to determine paternity
Section 112 of Indian Evidence Act , 1872 has great scope of debate considering the
nature of the DNA and the current law . The medical examination results are the key
answer all the aroused questions .
The rule embedded in Section 112 determines the status of illegitimacy . In spite of a
divorce , till 280 days after dissolution of marriage if a child is born to a woman it is
conclusively presumed to be the child of the man , with an exception of only one rule
that is the burden on the proof lies on the man to prove that he had no contact or
access with the woman during therefore the child conceived at that time could not
have been his .
Hence , if the man and woman were in contact with each other in such a situation
according to the proven theory it is told to be deemed his child and the wife cannot be
forced to take the DNA test . Only in case of non- access of the man woman , for the
determination of the actual status of the birth of the child . The rule is formulated to
basically benefit the child .
DNA test by an adult child - different scenario
This is a situation where the child has become and adult and then he seeks the
declaration of his biological father due the disputes aroused . In this situation the
theory of safety shield provided in section 112 of the Indian Evidence Act would be
inapplicable .

The case ND Tiwari - was a landmark case proving this situation .

1)This case talks about the right of son or daughter to get a declared character as a
legitimate son of his father
2) in such situation if the parent does not abide by the court for the blood samples to
be collected , then even coercive methods may be adopted to determine the same .
3) No adverse presumption will be deemed to displace the Evidence.
4) The Supreme Court did not allow any Stay order against the direction .
Right to privacy and dignity of women and children
The classic Supreme Court Case Re . Puttuswamy upheld this concept .
Diginity is a concept given great importance by Preamble and Supreme Court under
article 21 , among other rights . The concept of dignity and privacy are intertwined
with every event in a man's life from birth to death . Right to privacy is an integral
part of a person's liberty under article 21 .
Dignity helps a person to improve in overall development and improvement in totality
. Dignity is an autonomous right which might be infringed . Another landmark case
under this concept is -
Joseph Shine Vs Union Of India
In this case Section 497 was repealed as it was found contravening to Articles
14,15,21 of the Constituion .
It was held that section 497 does not recognize consensual activity .
It denies equality and talks about women and marriage.
It supports the right only for married women - for the benefit of her husband and her
virginity .
It makes the woman sound like object between the dispute of two men . Thus the
Supreme Court layed down that two men cannot fight for a women as an object this
act will be deemed unconstitutional , violating the soul of the constitution .
The dignity and privacy are very important concepts here because when a child has
to undergo its DNA test it points out the violate provisions and also highlights the
chastity of a women , which the longstanding law favouring her , to protect her
interest .
This not only disturbs the woman but also it effects the child's privacy as he is being
put through such serelogical tests at a very tender age - this concept has been
discussed in KS Puttuswamy and Dipanwita Roy's case .
Early Precedents
Kariyappa Vs Mayanadhi
"Acess" is a word in Section 112 and the question of opportunity of marital
intercourse is to be taken into consideration . Hence in the above case the child born
was deemed legitimate out of the valid marriage
Goutham Kandu vs State of Bengal
1)The Courts cannot mandate blood test as a matter of course
2) even for for inquiry a prayer for blood test cannot be allowed .
3)the husband should establish a strong situation of non - access as per Section
Evidence Act .
4) The consequences of blood test is very important and should be scrutinized this
should not tag the child as illegitimate and question the mother's chastity .
5)no man can be forced to give his sample for analysis.
Kamti Devi Vs Poshi Ram
In this case the concept of conclusive proof was addressed . The party who has to
prove the “no – access” should completely take the burden of proof on him to prove
the non access and conclusiveness. There should be a proper situation which should
show that the wife and the husband both did not have time to approach each other
during the relevant time .
Kamti Devi Vs Sham Lal And Kuldeep Vs Sanjeev Kumar
These 2 cases addressed the validity of a marriage and also States that a child born
during a valid marriage is a legitimate child with the father being presumed to be the
husband . The capability of the doubts cannot eliminate the presumption. Even if the
wife is involved with adultery strong evidences are proved it in itself is insufficient
to remove the presumption and the child cannot be declared illegitimate when the
husband has access.
Recent Precedents : Acceptance of DNA test by establishing “no – access “
Kamti Devi Vs Sham Lal
With advent of technology and situation the court started accepting DNA test to
determine paternity and a similar judgement was awarded in the case
Bhabani Prasad vs Convenor Secretary , Orrissa State commission for women
and another .
In the above case it was layed down that the concept of DNA test is a very delicate
aspect as this test has the possibility of branding a child as an illegitimate child
which could the the privacy and prejudicial aspect of a child . Sometimes even if the
parents were living together and after the tests the child is proved to be the legitimate
child just the process of putting an innocent child through all these process is very
disturbing .
Hence the pros and cons have to be critically valued and only in case of eminent need
the court should reach out for such a possible resort .
Matrimonial Dispute and DNA testing
Dipanvita Roy Vs Ranobrota Roy
The respondents wife was orderd to undergo DNA test due to the doubt of infidelity
as per Section 13 of the Hindu Marraige Act . The court referred tot he case of
Bhabani Vs Prasad and Nandlala Wasudeo Badwaik
Considering the facts and situations the court can issue orders for DNA test to
conclude and answer an allegation . For which either of the Parties would loose or
success depending on how truthful they are . The court should try its utmost to evade
the DNA test considering that the legitimacy of the child should not be put at peril .
DNA test is the best way to find out legitimacy by the scientific method which is a
tool for the husband to get a proof of the virginity or infidelity of the his wife.
This is also a test of the wife's loyalty and honesty . A child's reputations cannot be
put at stake and the child's interest should be protected and not challenged due to
matrimonial dispute.
Drawbacks of section 112
The concept of paternity under civil and criminal law is extremely vital . The child
born in the course of a valid marriage is deemed to be conclusive .
The only exception being non access which in other words being insufficient
opportunity for the couple to have intercourse . Which creates a huge gap and doubt in
the mind of the father . In such a case the paternity is not looked into from the
adultery perspective but the concept of conclusive proof is given more importance .
Just the concept of non access is very ambiguous and is insufficient to cover all
possibilities especially in the modern era .
Critical analysis ( opinion )
In my opinion the case Dipanwita Roy is the first to talk about the theory of
legitimacy while being in a valid marriage as per Section 112 of the Indian
Evidence Act .The basic principle of abiding by the law what is said by the law is
what can be interpreted by the law the judicial bodies as well hence we cannot deviate
except by stating the law unconstitutional .
It is vital to carve out the two differences one is to establish paternity the other is
proving wife's infidelity. The situation which a child will be put through in case of a
negative report should surely be considered along with other things . The current
scenario should also consider the possibility of the DNA test to offer a completely
accurate result . Looking at law as looked at previously and tredding through the
same path is not appropriate with advent of time and change in mindset of the people .
Hence I would like to recommend that 2 or 3 people can act as constitutional
custodians to take policy on such decisions especially on such sensitive issues .
Mostly astrological tests are prayed to under if the child is his biological child only
when questions are raised in divorces . The concept of right to privacy and dignity
was we'll explained and answers by the 9 bench judge in Puttuswamy case .
Another alarming concern in this situation is the child has no say when DNA tests are
taken in case in spite have adequate maturity where in many cases he is just used a
vegetable body which is exploited and his blood is questioned mostly due to
Matrimonial dispute between parents .
The judicial body in rare cases in spite of allowing does not provide an efficient way
of protecting his dignity and privacy by plainly slapping the illegitimacy certificate
on his face which is a huge violation of the child's Right to Privacy .
Conclusion
I would like to conclude the paper y stating there is huge gap in the law which has
left many people perplexed . In spite of access the Parties relationships are subject to
paternity , but restrictive access of the DNA to protect women and children is right
from the societal and moral possibility but deeming all the men to be the biological
father during a valid marriage on the concept of conclusive proof is not right
: The law should use these tools and solve the question of the dispute by focussing on
access through scientific method .
The recommendation made by the Law Commission of India should be taken into
consideration . The provision should be construed in such a manner as to waive the
defence claim of a child if a man denies such tests to address the lacuna created and
there should be a proper balance of strict laws and protections of the societal norms .
The amendment suggested is a need of the hour , the bill has not been passed yet .