HSP PROJECT

ON

SCOPE AND APPLICATION OF

SECTION 112 OF THE INDIAN
EVIDENCE ACT 1872

SUBMITTED BY:
G.SHYAM SAGAR
SECOND SEMESTER

ROLL NO.:757
INTRODUCTION
Section 112 in the Indian Evidence Act, 1872
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 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.1
Section 112 is based on the principle that when a particular relationship, such as marriage, is
shown to exist, then its continuance must prima facie be presumed. Evidence that a child is born
during wedlock is sufficient to establish its legitimacy and shifts the burden of proof to the party,
seeking to establish its legitimacy and shifts the burden of proof to the party, seeking to establish
the contrary.2

A closer look at the section 112, stating, "Birth during marriage, is conclusive proof of
legitimacy", shows us that the legal presumption here is similar to that of the Latin Maxim,
pater est quem nuptiae demonstrant, meaning thereby, he is the father whom the marriage
indicates. From ancient times, it is the presumption that if the husband was within the four seas,
at any time during the pregnancy of wife, the presumption was conclusive that her children were
legitimate. Under this section, there is a conclusive presumption that a child born during the
continuance of a valid marriage is a legitimate issue of parents, no matter, how soon the birth is,
after the marriage3.

http://indiankanoon.org/doc/817818/

Law of evidence :Authored by Sudipto Sarkar and V R Manohar17 th Edition[U.4, Ch.2] pg. No.528

APPLICATION OF SECTION 112 OF THE

INDIAN EVIDENCE ACT 1872
For the purpose of drawing a conclusive presumption as to legitimacy the following conditions
have to be satisfied:
1.) The child must be born during the subsistence of a valid marriage. The first condition is
that the child must have born during the lawful wedlock and then section 112 raises a
conclusive presumption that he is the legitimate son of the man to whom the mother is
married.
There must be continuance of valid marriage if presumption is to be made under section
112. If the marriage is a void or irregular or invalid presumption is not to be made under
section 112. According to section 112 it appears to be that no presumption can be drawn
in respect of a child born out of an unlawful wedlock. However, in Hindu Marriage act
there is a provision under section 16, which says, although a child is born out of an
unlawful wedlock, still that child will be a legitimate one. Section 112 of the Evidence
Act does not abrogate section 16 of the Hindu Marriage Act and even child born out of an
unlawful wedlock is considered to be a legitimate child under the Hindu Marriage Act.
The presumption under section 112 should be drawn by all the courts, civil, criminal and
revenue governed by the Indian Evidence Act 1872.
The provisions of section 112 are as much applicable to the offsprings of a marriage
between Hindus, as it is to children of spouses professing other faiths including
Mohammadan.
The presumption as to paternity in section 112 only arises in connection with the
offspring of a married couple. On the birth of a child during marriage the presumption of
3 http://www.legalserviceindia.com/articles/tdna.htm

legitimacy is conclusive no matter how soon the birth has taken place after the marriage.
When a child is born eight months after the marriage then under section 112 it presumed
that the child is of the then husband. If a child is born three months after the marriage still
the born child is considered or presumed to be the child of the then husband of the mother
under section 112. But, the person on whom the paternity is thrusted can deny showing
that he had no access to the wife at the time when the child was begotten. But according
to Section 112 if the non-access is not shown the presumption that would be drawn is that
he is the legitimate son of that person because the child was born during the subsistence
of a valid marriage.
If the wife is having illicit connection with another person during the continuance of a
valid marriage and the child born during that continuance of a valid marriage, it is
presumed that the child was born out to the husband.
2.) The child must have been born within 280 days of the dissolution of marriage and the
mother remaining unmarried.
Section 112 does not lay down a maximum period of gestation and therefore does not bar
the proof of the legitimacy of a child born more than 280 days after the dissolution of
marriage, the effect of the section 112 being merely that no presumption in favour of
legitimacy is raised, and the question must be decided simply upon the evidence for and
against legitimacy. A person born within 280 days after the death of his father is
presumably his legitimate son.
The condition according to which even if a child is born within 280 days of the
termination of marriage, the child is conclusively presumed to be the legitimate son that
person with whom the marriage was in subsistence. The period of 280 days known as the
gestation period and in some cases beyond 280 days i.e. in some cases it may be 290
days or 300days or even 360 days but not more than that. But where a child is born after
280 days of the dissolution of marriage no presumption as to legitimacy can be drawn
under section 112, but legitimacy can be established by giving necessary evidence of
medical opinion that the conception prolonged beyond 280 days.4
4

ibid pg no. 529 to 530

ACCESS TO EACH OTHER

For the purpose of drawing a conclusive presumption as to legitimacy of the child it is
presumed that the husband had intercourse with the wife at the time the child must have
been conceived. It is not necessary that it must not have been shown that the parties had
no-access to each other when the child was begotten. The presumption as to legitimacy of
a child can be displaced or rebutted by showing that the parties to marriage had no access
to each other at the time when the child was begotten.
The word access in Section 112 means actual sexual intercourse. Access means
effective access. It means opportunity to procreate. Non access means physical
impossibility of approach. Non access may arise on account of:
1.)
2.)
3.)
4.)
5.)

Impotency
Vasectomy etc.
Husband undergoing jail sentence
Husband suffering from serious disease
Husband in far off country while mother in India etc.

Access and non access connote existence or non-existence of opportunities for marital
intercourse.
It is an irrebuttable presumption of law that a child born during lawful wedlock is
legitimate and that there was access between the parents. This presumption can only be
displaced by a strong preponderance of non-accessibility.
To rebut the legal presumption under section 112, it is for those, who dispute the paternity
of the child, to prove non-access of the husband to his wife during the period when with
respect to that date of its birth, it must, in the ordinary course of nature, have been
begotten.
Non-access can be established not merely by positive or direct evidence, direct or
circumstantial, which is relevant to the issue, though as presumption of legitimacy is

highly favoured by law it is necessary that proof of non-access must be clear and
satisfactory. The standard of proof of non-access is similar to that in a criminal case.5

BLOOD GROUP TESTS AND DNA FINGER

PRINTING
The blood group tests are useful to exclude the possibility that a man is the father. Sophisticated
blood tests are now being adopted which are so advanced as capable of providing a very high or
low probability of paternity. Tests made of the DNA (Deoxy Ribo Nucleic Acid in blood or other
bodily substances or tissues) can provide what can practically be regarded as certainty in
paternity cases.
According to decisions from different courts:
1.) When paternity of a child in civil proceedings can be decided effectively without
resorting to DNA test, the DNA test cannot be directed in such proceedings.
2.) The DNA test of a minor child cannot be conducted at the instance of the husband when
it is refused by the mother of the child, she being guardian.
3.) The courts in the capacity of ad litem guardian of minor can also not direct such a test in
absence of direct and positive evidence of non-access as required by section 112 of the
Evidence Act.6

SCOPE
This section emphasises the rule of law that a child born during the continuance of a valid
marriage or during two hundred and eighty days after its dissolution shall be conclusive proof
that it is legitimate, until and unless proved by clear and strong evidence in this case it being the
5 ibid pg no. 531 to 532
6 ibid pg no. 533 to 534

husband and wife did not or could not (owing to reasons like impotency, serious illness, absence
form that place etc.) have any access at any time when the child could have been begotten. The
law presumes against vice and immorality. The principle underlying this rule of law is that on
ground of presumption of public policy and public morality; it is undesirable to enquire into the
paternity of a child whose parents have access to each other.7
The presumption of legitimacy arises from birth in marriage and not from conception unless nonaccess can be proved. This presumption is very much rebuttable but only by very strong and
clear proof of non-access. This section refers to point of time of birth as the deciding factor. The
point of time of conception has to be considered only to see whether the husband had no access
to the mother.8 According to the intention and spirit behind section 112, once the validity of the
marriage is proved then there is strong presumption about the legitimacy of children born from
that wedlock. The presumption still exists even when there is no positive evidence of any
marriage having taken place.9 Section 112 has no application when maternity is in dispute. 10
Presumption under Section 112 can be drawn by any court civil, criminal or revenue.11
Section 112 is as much as applicable to the offspring of a marriage between Hindus as it is to
children of spouses professing other faiths. 12 Another important feature of this Section 112 is that
it is applicable to all persons including Mohammedans.13

Sham Lal v. Sanjeev, Kumar AIR 2009 SC 315

Palani v. Sethu, 47 M 706

Sarangapani v. Vardhan, A 1995 Mad 188

10

Nand v.Gopal, A 1940 PC 93

11

Jambapuram v. J, A 1950 M 394

12

Boramma v. Dharmuppa, A 1969 Mys17

13

A G Ramachandran v. Shamsunnissa, A 1977 M 182

CASES
For a crystal clear apprehension of the application and scope of the section 112 of the Indian
Evidence Act 1872, the following cases are of great use, all the following cases deal with the
various conditions and constraints that can be observed during the application of section 112 of
the Indian Evidence Act 1872. The cases are as follows:
1.)

In Sethu v. Palani [ILR(1925) 49 Mad 553], a woman married a man in September,

1903; the marriage was dissolved in May 1904; she married another person in June 1904,
a son was born to her in September 1904 during continuance of her marriage with her
second husband i.e. within three months of her second marriage. It appeared that the
second husband had access to her during her first marriage. In a suit by the son to recover
the property of the second husband on his death, it was contended that the plaintiff was
not he legitimate son of the second husband. It has been held that the plaintiff was in law

the legitimate son of the second husband of the woman, and was entitled to the property.14
2.)
In Triloke Nath v. Lachmin [(1903) 30 IA 152] it has been held that a child born
223 days after the husbands death was legitimate.15
3.)
In Rangaswamy v. Nagamma [AIR 1971 Mys 178] it has been held that ordinarily
the period of gestation is 10 days + 9 months after the last date of menstruation, the child
may be born earlier than 280 days on account of certain individual factors. A child born
on the 240th day after sexual intercourse is not unnatural, and so the child is legitimate.16
4.)
In Madanlal v. Sudesh Kumari [AIR 1988 Del 93] where a child was born 6
months 4 days after the marriage and it was found that it was a normal delivery and it was
not a case of premature birth of the child, it was held that the presumption is rebutted.17
14

http://indiankanoon.org/doc/393259/

15

Law of evidence: Authored by Sudipto Sarkar and V R Manohar17 th Edition [U.4, Ch.2] pg no.530

16

http://www.indiankanoon.org/doc/1193878/

17

http://indiankanoon.org/doc/1979318/

5.)

In Maganlal v. Bai Dahi [AIR 1971 Guj 33] it has been held that the presumption
of legitimacy can be drawn if a child is born beyond the period of 280 days, which is a

reasonable period of normal period of gestation.18

6.)
In Nur-ul-hassan v. Muhammad Hassan [(1910) PR No.78 of 1910(Civil)], a child
born more than 280 days after dissolution of his mothers marriage with her first husband
but less than 6 months after her marriage with her second husband was held entitled to
inherit as the legitimate son of the second husband.19
7.)
In P.V.Sabu v. Mariakutty [AIR 1998 Ker 86] it has been held that where the wife
was pregnant on the date of marriage and the husband had no access to the wife before
marriage, then there was no question of applying section 112 of the Indian Evidence Act
1872 or no conclusion could be drawn under section 112.20
8.)
In Sm. B. Vergam v. Manoranjan Samanta Kumar [ILR (1963) Cut 415] it has been
held that a youth of 15 years was held not incapable of procreation.21
9.)
In Bhagwan v. Mahesh [40 Cal WN 360], it has been held that where non-access
on account of immature age is alleged it would be necessary to prove first the precise age
of the husband on the date of conception and secondly to negative the possibility of
premature virility at that age owing to precocious development. Without such proof nonaccess based on the alleged incapacity of the husband cannot be made out22.
10.)
In Chiruta Kutty v. Subramanian [AIR 1987 Ker 5], the parties married in 1969,
the husband underwent vasectomy operation on 8-1-76, both were living together and the
wife gave birth to a child on 30-8-1978, it was held that the husband had not proved in or
about November 1977, when the child was conceived, he was unable to procreate. So the
child should be presumed to be legitimate.23
18

http://www.indiankanoon.org/doc/832300/

19

Law of evidence: Authored by Sudipto Sarkar and V R Manohar17 th Edition [U.4, Ch.2] pg no. 531

20

http://indiankanoon.org/doc/1900663/

21

Law of evidence: Authored by Sudipto Sarkar and V R Manohar17 th Edition [U.4, Ch.2] pg no. 532

22

http://www.indiankanoon.org/doc/1461647/

23

Law of evidence: Authored by Sudipto Sarkar and V R Manohar17th Edition [U.4, Ch.2] pg no. 532

11.)

In Raymond Francis v. Roma Jyotrimoi Isar [ILR 1957 Punj 181(SB)], where the

wife left for England on 11-6-53 and she gave birth in England to male child on 12-5-54
and during that period the husband never left the shores of India it was held that it was
impossible for the husband to have access to her and so the husband was not the father of
the child.24
12.)
In Parameswaran Nair v. Janaki Amma [AIR (1972) Ker 80], where it is shown
that during the time the child could have been begotten the husband was out of India no
presumption of legitimacy can arise and an admission by the wife in her husbands
divorce petition that, the child was born to her husband can be of no avail.25
13.)
In Perumal v. Ponnaswami Nadar [ AIR 1971 SC 2352], it has been held that the
presumption of legitimacy under section 112 will not be displaced by the mere fact that
the husband and wife were living apart in the same village long before the birth of the
child, unless the husband is able to establish the absence of access, when the child could
have been begotten26
14.)
In Banarsi Dass v. Teeku Dutta [(2005) 4 SCC 449], it has been held that in view
of the provision of section 112, there is no scope of permitting the husband to avail of the
blood test for dislodging the presumption of legitimacy and paternity arising out of the
section 112. Blood group test to determine the paternity of a child born during wedlock is
not permissible.27
15.)
In Leelabai v. Kashinath [73 CWN 19], considering the imperfection of science
on this subject, a Division Bench of Calcutta High Court refused to allow blood test to
determine paternity. Hence the only way the conclusive proof can be rebutted is by
proving non-access.28

24

Law of evidence: Authored by Sudipto Sarkar and V R Manohar17th Edition [U.4, Ch.2] pg no. 533

25

Law of evidence: Authored by Sudipto Sarkar and V R Manohar17th Edition [U.4, Ch.2] pg no. 533

26

Law of evidence: Authored by Sudipto Sarkar and V R Manohar17th Edition [U.4, Ch.2] pg no. 533

27

http://indiankanoon.org/doc/505918/

28 http://www.indiankanoon.org/doc/1961394/

16.)

In Sajeera v. P.K.Salim [2000 CrLJ 1208 Ker], it has been held that for the

determination of the paternity of child, the blood test can be conducted only with the
consent of the person and the court cannot compel any person to undergo blood test.29

Comparison with provisions under English Law:

In England, the husband or wife could not give evidence of non-access or access tending to
bastardise or legitimise a child conceived and born during a lawful wedlock. This rule has been
declared not applicable in India in most of the jurisdictions. Later on, this rule was abrogated
from English Law. Non- access will be presumed after divorce or judicial separation or an order
authorising the parties to live apart.30 In India, further more evidences are required to presume so.

The entire topic can be summarised into these following words of LORD HAISBURY:
The question is to be treated as one of the fact and like every other question of fact, when you
are answering a presumption it may be answered by any evidence that is appropriate to the
issue.31

CONCLUSION
So, a final solution to all this dilemma and uncertainty can be the DNA mapping and comparison
of DNA of a child and the parents. In the recent case of State through CBI v. Amaramani Tripathi
the paternity of a six months old fetus in the womb of deceased was conclusively established
29

http://indiankanoon.org/doc/597286/

30

Hetherington v. H, 12 PD 112

31

Poulett Peerage, 1903 AC 393

with the help of DNA test. Further, the Courts, these days, is heavily relying on scientific proofs,
in the cases of murder and rape. Even there are cases where the conviction is made by following
the medical evidences. So, it is high-time that the scientific aptitude should be brought in the
issue of determination of legitimacy of a child.

Bibliography and References

1. Law of evidence:
Authored by Sudipto Sarkar and V R Manohar
17th Edition

2.

The Principles of the Law of Evidence

Authored by- Dr. Avatar Singh

3.

4.

www.westlaw.com

www.indiankanoon.org