Legitimacy of a child

Legitimacy of a child:

Section 112 of the Indian Evidence Act:

“112. Birth during marriage, conclusive proof of legitimacy: The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 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.”

As per Sec.112, the person alleging illegitimacy must conclusively establish that he had no opportunity to have intercourse with the wife at the time when according to the natural course of nature, the child must have been begotten.

It requires positive proof of negative fact.

The presumption contemplated by Sec.112 is a conclusive presumption of law.

If it is proved that there was a valid marriage between a man and woman and during the valid marriage, the child was born, the conclusive presumption of legitimacy arises.

The only thing that can displace it is the proof of the particular fact mentioned in it i.e. non-access between the parties to the marriage at a time when the child could have been begotten.

No person could be compelled to give a sample of blood grouping testing against his wish and no adverse inference could be drawn against him for his refusal.

It is a rebuttal presumption of law that a child born during the lawful wedlock is legitimate and that access occurred between the parents.

This presumption can only be displayed by a strong preponderance of evidence and not by a mere balance of convenience, arrived at by some unreliable blood tests.

Ref: Goutam Kundu v. State of West Bengal, AIR 1993 SC 2295

Ref: Polavarapu Venkateswarly, minor by Guardian mother Manumamma v. Polavarapu Subbayya

The Supreme Court in Goutam Kunda v. State of West Bengal, AIR 1993 SC 2295, has observed as follows:

“There is a presumption and a very strong one though a rebuttable one.”

“Conclusive proof means as laid down under Sec.4 of the Evidence Act.”

From the above, it emerges:

(1)    That courts 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 for blood test cannot be entertained

(3)    There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Sec.112 of the Evidence Act.

(4)    The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5)    No one can be compelled to give sample of blood for analysis.