In India, morality of the woman and parenthood of the child holds great value and are considered as issues of great honor and respect. Section 112 of the Indian Evidence Act, 1872 deals with the legitimacy of a child. The social status of an offspring rests upon the legitimacy of its birth. Section 112 of the Act, consists of two parts. The first part deals with the birth of a child during the continuance of a valid marriage between a man and a woman, and the second part deals with the birth of a child during 280 days after the dissolution of that marriage. The section establishes the fact of marriage as conclusive proof of legitimacy. The only way to rebut the legitimacy is to prove ‘no access’ i.e. he could not possibly have had sexual intercourse with the mother of the child at any time during which she could have conceived the child born. This can be proved either by showing that the man was away in some other city or at a distance from which he could have had no possible opportunity of having sexual intercourse with the mother or by proving that he was impotent at all times at which the child could have been conceived. If however, the husband fails to prove any of these, he shall be deemed to be the father of the child born.
The presumption of a child born within 280 days of the dissolution of the marriage, being legitimate is subject to the condition that the woman remains unmarried. If the woman remarries before the birth of the child, the second part of the section would have no application. The child would be presumed to be the legitimate child of the second husband under the first part of the section unless it is shown that the second husband had no access to the woman at any time when the child could have been begotten.
The words “at any time” and “could have been begotten” are very significant. The requirement of the section for rebutting the conclusive presumption the contending party will have to show non-access ‘at any time’ when the child ‘could have been begotten’ which means non-access not at any particular moment but during the whole span of the time when the conception according to the ordinary course of nature possibly could have taken place.
Problems And Inconsistency In Section 112
Section 112 of the Act mentions only one particular exception to the presumption of legitimacy i.e. non access of the parties at the time when the child could have been begotten. However if shown that the circumstances of their access were such, as to render it highly improbable that a sexual intercourse took place between them, the presumption as to legitimacy could be rebutted.
Another problem with this section is that it presumes that a child born within 280 days after dissolution, is legitimate. The average period of pregnancy is 40 weeks or 280 days, and the resulting length of pregnancy may vary by a number of days. Therefore, the actual duration of pregnancy is not known and the gestation period may get prolonged. Strictly reading Section 112, a child born before the 280th day would be legitimate and a child born on the 281st day becomes illegitimate.
Several modern advancements such as deoxyribonucleic acid (DNA), ribonucleic acid (RNA) tests, sperm bank or cryobank, in vitro fertilizations, surrogacy etc. have done away with the necessity of a sexual intercourse i.e. the physical presence of a man near a woman for the conception of a child.
Science and technology has advanced so much that it can be accurately ascertained with the help of DNA testing as to whether parties to the dispute have to be given. Now the DNA fingerprinting test has been much advanced and resorted to by the courts of law to resolve the dispute of paternity of the child. In case of Sharda v. Dharmpa, the Apex Court has clearly indicated that it has the power to order a medical test which would not violate the personal liberty and the relevance of the same cannot be disputed.
Provisions of this section apply only to lawful marriage. Despite the medical jurisprudence stating otherwise, the section considers 280 days before dissolution to be conclusive. Thus, the section is to be expanded and given a wider interpretation.
Therefore it is essential to bring about an amendment to Section 112 to include contrary scientific evidence as an exception considering the accuracy of the tests and the idea of meeting the ends of justice. The ends of justice would not be met by burdening the husband with parenthood, just for living with the wife. Law is considered to be dynamic one and not static, it should keep changing according to needs and development of the society without compromising its basic principles.
By Shalya Agarwal
Law Student
Symbiosis Law College, Noida