Hundred forty eight years ago the enactment of Section 112 of Indian Evidence Act, 1872 laid the foundation of the rules/procedure which could help in determining the legitimacy, i.e. legal status of the child born during the continuance of a valid marriage. Section 112 of The Indian Evidence Act, 1872 lays down two irrebuttable legal presumptions of legitimacy applicable to the offspring of all married couples in India; namely the birth of a child during the continuance of a valid marriage between a man and a woman, and the birth of a child within 280 days after the dissolution of marriage and the mother remaining unmarried. 1 These two presumptions act as a conclusive proof, under Section 4 of The Indian Evidence Act 2 , for determining the legitimacy of the child subject to one exception, i.e. the parties to the marriage had no access to each other at any time when they could have been begotten. Here, access and non-access merely talks about the existence and non-existence of the opportunities for marital intercourse and don’t require the proof of actual cohabitation. 3 This can be proved by showing that the man was in some other city/state or was impotent at all times, failure to prove will make him the father of the child born. 4 Section 112 decides the legal status of the child solely on the presumption that the man and the woman had access to each other in terms of opportunities for sexual intercourse. In short, it says that if the man could not possibly have had sexual intercourse, it cannot be his child.
Issue: Modern day problem being handled through century old laws:
The issue of foremost importance which arises here, with this legal provision, is up to what extent this method is justifiable in the twentieth century where several modern scientific developments such as sperm banks, artificial insemination, surrogacy, and many more methods which doesn’t require the physical presence of a man and woman for the conception of a child. It again raises a disparity that when modern technology, such as DNA test is available which can accurately determine the parents, hence can easily decide the legitimacy of the child, why still we are using the same law passed hundreds of years ago when no such mechanism was available to decide the legitimacy of the child and to find the parents of a child would have been a really difficult task.
Legislative Scheme of Section 112:
The reason being Section 112 was inserted in The Indian Evidence Act in 1872 was the absence of any means of ascertaining the biological paternity of a child, and polygamy was deeply rooted in the Indian society at that time. 5 Men had several wives and extra marital relations due to which women get easily exploited, so by bringing up the presumption as stated in Section 112, the wife’s chastity was being protected and they were saved from being harassed in the society. The situation, now, has changed a lot, polygamy has become illegal too. Since, the situation is much different now; the earlier framed presumptions won’t be justified in any sense for the current period. Now the presence of a man and woman at the same place to have sexual intercourse is not necessary for conceiving the child as modern advancements such as artificial insemination does the work keeping man and woman apart from each other. When the pregnancy occurs from a single act of intercourse, the length of the pregnancy may vary by a number of days and is not strictly limited to 280 days. 6 Even the exception given under this sector to prove non-access is disrupted in context to modern day options such as artificial insemination, surrogacy, etc. Modern development has shattered these principles and has made them ineffective.
From presumptions to blood test to DNA test the situation has changed a lot. Presumptions had talked about the possibilities and an opportunity where a blood test has been an important piece of evidence to determine the paternity of a child but it also indicates a mere possibility. With the DNA test, there is no such ambiguity in determining the paternity of the child as the legitimacy of a child can easily be ascertained with the help of DNA test and also has been resorted to by the courts of law to resolve the disputes among parents in regard to the paternity of the child.
Artificial Insemination: Threat to Section 112?
Artificial insemination is a method used to deliver sperm directly to the uterus, cervix, or fallopian tubes of the woman as a result of which the woman gets pregnant. 7 In this way, the woman gets pregnant without entering into a physical relationship with any man and thus breaks all the presumptions and exceptions set out by Section 112 The Indian Evidence Act .As the pregnancy achieved using donor sperm is the same from the pregnancy achieved by sexual intercourse.
DNA test or blood test being more effective than the presumptions set out under Section 112, The Indian Evidence Act; still can’t be brought into practice of deciding the paternity and legitimacy of the child. There are no provisions as in law which can compel the party to submit a blood test. Even the blood group test to determine the paternity of a child born during wedlock is not permissible. 8 Supreme Court in Gautam Kundu v. State of West Bengal 9 laid down guidelines stating the conditions in which permissibility of blood test would be given in which it was said that no one can be compelled to give the blood sample for analysis. The apex court in Smt. Kamti Devi v. Poshi Ram 10 took a limited approach from the author’s point of view while accepting the accuracy of the DNA test yet said it is not enough to escape the presumptions and conclusiveness of Section 112 of The Indian Evidence Act. A woman legally married to a man undergoes an illicit connection with another person and conceives a child; in this case it would not be possible for his husband to prove that the child is not his and is of some other man.
As a result of the above finding, Supreme Court in Banarsi Dass v. Teeku Datta 12 held that DNA test should not be directed as a matter of course but only in deserving cases where interest of the child is involved 13 such direction can be given. Through these observations, courts have opened a way towards the use of modern technology in giving justice to the parties. Madras High Court 14 has gone to the extent by saying that the advancement in the field of science and technology must be used instead of merely relying upon the presumptions made under Section 112 of The Indian Evidence Act , as such presumptions would not have been made if technology would have developed to this extent at the time of enacting The Indian Evidence Act in 1872.
Supreme Courts in the Nandlal Wasudeo Badwaik v. Lata Nanlal Badwaik and Dipanwita
Roy v. Ronobroto Roy has placed their reliance on the DNA test keeping aside the year’s
old law of conclusive proof in determining the legitimacy of the children.
Law Commission of India in its 185 th report had made certain observations on the behalf of which has recommend for the modification of Section 112 of The Indian Evidence Act in which it laid emphasis on the insertion of DNA or blood test of husband, child, and wife (after taking consent and permission from the court) in Section 112 of The Indian Evidence Act instead of no access criteria given under current provision of Section 112. It was found that a DNA test is the best suited method to establish the legitimacy of the child and solve the dispute with respect to the paternity of the child. 17 Moreover, it provides absolute certainty rather than presumptions or probable exclusion. 18 The Malimath Committee report on the criminal justice system also recommended incorporating DNA testing as a scientific means to resolve disputes relating to paternity and legitimacy.
What can be concluded from all the discussion made above is to enumerate and empower the courts to use modern scientific development tools, such as DNA test or blood test to determine the paternity issues and go away with the years old way of determining the paternity and legitimate issues of the child. With time, new problems will come up and it
would not be possible to deal with new problems with age- old rules/procedures. The Indian Council of Medical Research (ICMR) laid out the ‘National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India’ (2005) but due to lack of legislative backing, these guidelines are not enforceable in a court of law. The Assisted Reproductive Technology (Regulation) Bill, 2020, which is currently under review, expressly provides, “A child born through Assistive Reproductive Technology (ART) will be deemed to be a biological child of the commissioning couple and will be entitled to the rights and privileges available to a natural child of the commissioning couple.” The passing of this bill, to an extent, will ensure that the reproductive rights of the couples and dignity of children born out of ART methods are protected. Furthermore, The Committee for Reforms in Criminal Laws, 2020 constituted by the Ministry of Home Affairs should also take into consideration the modern scientific advancements and suitable modifications should be brought about to keep the law attuned to the changing socio-cultural scenario.
By:- Bhawna Gandhi, Advocate- High Court of Delhi
(Raj Aryan from Lloyd Law College has also contributed in this article)