SCOPE AND APPLICATION OF PRESUMPTION OF LEGITIMACY OF CHILDREN UNDER LAW OF EVIDENCE

By Rohit Nandakumar 2nd Semester NUALS

INDEX

INTRODUCTION PRICIPAL AND SCOPE PRESUMPTION OF LEGITIMACY FROM BIRTH DURING CONTINUANCE OF A VALID MARRIAGE PRESUMPTION OF LEGITIMACY WITHIN 280 DAYS OF DISSOLUTION OF MARRIAGE PROCEEDINGS UNDER S.125 Cr.P.C PRESUMPTION OF LEGITIMACY FROM FILIATION ACCESS PROOF OF NON-ACCESS PRESUMPTION OF INTERCOURSE AND ITS REBUTTAL EVIDENCE OF SPOUSE IF REQUIRES CORROBORATION

BLOOD-TEST CONCLUSION REFERENCE

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

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, nonaccess 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 maxim pater 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.

Goutam 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.
2 3

Palani v. Sethu, 47 M 706: 81 IC 456. Nand v Gopal, A 1940 PC 93:1940 Kar 235: 72 CLJ 263.

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

4 5

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

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 the under 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

7 8

Ram Nath V Desraj Singh AIR 1935 oudh 80, ILR 10 Luck 499, 153 IC 349. Khwaja Ahmed Khan V Mst Hurmuzi Khanam AIR 1921 Oudh 81, 61 IC 177. 9 Sharmila Devi V Shankar Das 1978 Cr LJ (NOC) 176, 1978 Hindu LR 719 10 Ghanshyam Chaturvedi V Radha Devi 1982 MPLJ 487, Baldev Raj v Urmilla Kumari AIR1979 SC 879 11 Vasu prabhavathi v. UN sukumaran (1990) 1 Ker LJ 65

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

12 13

Janamma v. kuttappa 1959 Ker 366, (1959) ILR Ker 157 Tikam singh v. Dhan kunwar (1902) ILR 24 All 445 14 Palani v. sethu AIR 1924 Mad 677, ILR 47 Mad 706,81 IC 456; Moroti V. Bhag AIR 1923 Nag 43, 68 IC 465.

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 access and 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

15 16

Chaya v. K.G.Channappa gowda, 1993 Cri LJ 767,771 Ker Soloman v. jaini bai, AIR 2004 Mad 460 (462) 17 Alpana v. mohanlal, 1993 Cri LJ 1008,1010,1011. 18 Krishnappa v. venkatappai AIR 1943 Mad 632,(1943) 2 MLJ 108

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.

19 20

Kishan gopal v. saraswathi 1979 WLN (UC) 555 Chandramathy v. pazhetti Balan AIR 1982 ker 68,, 1981 Ker LT (SN) 104

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. Nonaccess 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. The presumption 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 be strong, 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, if the husband establishes that he had no sexual intercourse with his wife, he need not prove further that he had no opportunity. Even if the 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

21

Nga 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

forth coming, it will not be possible for a 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 showing that the husband was : a) Incompetent b) 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, have been begotten or d) Only present under such circumstances as afford clear and satisfactory proof that there was 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 nonaccess. 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

22

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

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

23 24

Sreenivasan v Kuribau AIR 1957 Mad 160, 1967 Cr LJ 369. Kalla Maistry V Kanniammal AIR 1963 Mad 210; Munuswamy V. Usha Rani 1975 Mad LW (CR) 240 Mad. 25 Dr. Chathukutty V. janaki amma 172 KLJ 12,14,1972 KLT 110,1972 Cr LJ 696(Ker)

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 in Hargobind Soni v Ramdulari by 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

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

REFERENCE
Blacks law dictionary Vakilno1.com Modern law of Evidence Adrian Keane Sarkars Law of Evidence Sir John Woodroffe & Syed Amir Alis Law of Evidence