PRESUMPTION OF LEGITIMACY.

PROJECT SUBMITTED BY Srinivas Atreya, 519. Deepika S, 520. Fatima Nadackal, 521. Gaurav Singh, 522. Harveen Dhillon, 523.

INDEX
LEGAL PRESUMPTIONS PRESUMPTION OF LEGITIMACY NEED AND CONDITIONS FOR PRESUMPTIONS OF LEGITIMACY EVIDENCE FOR REBUTTAL OF THE PRESUMPTION PRESUMPTION OF LEGITIMACY UNDER COMMON LAW PRESUMPTION OF LEGITIMACY IN INDIA IMPORTANT CASES RECOMMENDATIONS OF MALIMATH COMMITTEE REFORMS REQUIRED CONCLUSION REFERENCE 3 3 3 4 4 4 6 8 9 9 10

PRESUMPTION OF LEGITIMACY. LEGAL PRESUMPTIONS: - A fact which is assumed to be true under the law is called a presumption i.e. the court will assume a fact to be true until it is rebutted by a greater preponderance of evidence against it. PRESUMPTION OF LEGITIMACY: - According to this presumption, a child born to a married couple is presumed to be their legitimate offspring in the absence of a clear demonstration that the husband could not possibly be the father i.e. a child born of a husband and wife living together is presumed to be the natural child of the husband. This presumption is based on the principle, Odiosa et inhonesta non sunt in lege prae sumenda', which means nothing odious or dishonourable will be presumed by the law. Another principle which is in favour of the presumption of legitimacy is, 'Pater est quem nuptioe demonstrant which means he is the father whom the marriage indicates. This presumption of legitimacy is also known as the Lord Mansfields rule who articulated it for the sake of decency, morality and policy. NEED FOR PRESUMPTION OF LEGITIMACY: - Legislatures across the world have accepted the legitimacy presumption to protect the institution of family and to secure the future of the child. The presumption of legitimacy is primarily a common law principle and it had severe restrictions on the rebuttal of this presumption, the main reason being an aversion to declaring children illegitimate, thereby depriving them of the rights of inheritance and succession. Another reason was to protect the peace and stability of families, which could not be possible if partners start suing each other stating that the child is illegitimate. CONDITIONS FOR PRESUMPTION OF LEGITIMACY: - The following conditions are required for the presumption of legitimacy to hold good. 1) The child should be born of or conceived out of a lawful wedlock. 2) There should be absence of sufficient evidence to the contrary.

EVIDENCE FOR REBUTTAL OF THE PRESUMPTION: - The evidence for rebuttal maybe the evidence of non access, husbands impotence, the uses of any other precaution to avoid the possibility of a child or the results of a DNA test. PRESUMPTION OF LEGITIMACY UNDER COMMON LAW: - The presumption of legitimacy is a very strong presumption under the common law and very severe and strict restrictions were placed for the rebuttal of this presumption. This presumption is not even rebuttable by the declaration of the husband or the wife stating that the child is illegitimate1. Also the doctrine of equitable parent is a reflection of the common law tradition which is strongly in favour of the presumption of legitimacy. According to this doctrine, a husband who is not the biological father of the child conceived or born during the marriage maybe a legal father, if the husband and child mutually acknowledge a father-child relationship or the mother helps develop such a relationship, or if the husband is willing to take the responsibility of paying child support and therefore desires the rights afforded to a parent 2. But once this presumption is rebutted, the child in question loses all his rights of inheritance and succession. A child was considered to be illegitimate under common law if the parents were not married to each other at the time of the childs birth even though they got married later. This presumption was also rebuttable upon the proof that the husband was either physically incapable of impregnating or was absent at the time of conception. If any of these conditions are proved, the child would be declared illegitimate and he would lose his rights of inheritance and succession. In this regard, the common law is considered to be a little backward as modern law has given more rights for the non marital child. PRESUMPTION OF LEGITIMACY IN INDIA: - The legitimacy presumption is a legally valid presumption in India. This principle can be found in Section 112 of the Indian Evidence Act which states that, 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
1 2

Russell V Russell. Michael H case, U.S Supreme Court.

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. This section highlights the common law principle that the child born out of lawful wedlock is presumed to be legitimate unless it can be shown that the parties to the marriage had no access to each other. Thus, in the Indian scenario, only non access can be a relevant evidence for rebuttal of the presumption. The results of a DNA test, though used as evidence by many courts under Section 45 of the Indian Evidence Act3, is not yet a conclusive proof under Section 1124 or under any of the legislations enacted. Section 112 refers to non access as the sole exception. Therefore, as the language of the section stands, no other evidence is permissible except non access, to prove that a person is not the father5. In the year 2003, The Indian Evidence (Amendment) Bill was proposed on the recommendation of the 185th Law Commission Report. This Bill provides for DNA tests in paternity disputes. Under the proposed Bill, Section 112 of the Indian Evidence Act would read as under:
Birth during marriage conclusive proof of legitimacy except in certain cases 112 The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days, (i) after the marriage was declared nullity, the mother remaining unmarried, or

Opinion of Experts: - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such persons are called experts.

4 5

Shaik Fakruddin V Shaik Mohammed Hasan. Kanti Devi Vs Poshi Ram, Supreme Court of India.

(ii) after the marriage was avoided by dissolution, the mother remaining unmarried, shall be conclusive proof that such person is the legitimate child of that man, unless (a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or (b) it is conclusively established, by tests conducted at the expense of that man, namely, (i) medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or (ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the Court, that that man is not the father of the child; or (iii) DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the Court, that that man is not the father of the child; and Provided that the Court is satisfied that the test under sub-clause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to accepted procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that that man is not the father of the child. Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him.

But this Bill has not yet been passed and hence DNA tests still do not have the necessary legislative backing. IMPORTANT CASES: - Time and again there have been cases where the question of relevance of blood tests and DNA tests to determine the paternity of the child has arisen. There have been different decisions given based on circumstances. In the case of Sharda V Dharmpal, the question was whether a party to a divorce proceeding can be compelled to undergo a medical examination. Here an order for a DNA test was opposed by the respondent on the grounds that it would violate his Right to Privacy under Article 21 of the Constitution. The Supreme Court in this case rejected the respondents claim and held that in spite of an order passed by a Court, a person refuses himself to submit to such medical examination, a strong case for drawing adverse inference would be made out 6. It was also held that there is nothing brutal or offensive or shocking in taking the blood sample for DNA test under the protective eyes of law. But in the case of Ningamma V Chikkiah, it was held that the testing of the blood groups violates Article 21 of the Constitution. In Mrs. Kanchan Bedi and Anr. V. Shri Gurpreet Singh Bedi, the parentage of the infant was in question, and the application filed by the mother for conducting DNA test was vehemently opposed by the father contending that it would violate his rights. This was a case for grant of maintenance and it was held that if the parties willing to submit themselves to the DNA test, it wont be a violation of rights. In the cases of Gautam Kundu V State of West Bengal and Tushar Roy V Sulka Roy, it was held that DNA tests or any kind of medical examination for determining thepaternity of the child is not permissibu8i78ile. Both these cases were claims for maintenance. A similar judgement was observed by the Supreme Court in the case of Ramkanya Bai V Bharatram.

Section 114 of the Indian Evidence Act enables a Court to draw adverse inference if the party does not produce the relevant evidences in his power and possession.

From the above decisions, it is clear that there is no standard rule which is applicable to the question of DNA tests to determine the paternity of a child. However, the case of Gautam Kundu V State of West Bengal is considered to be a standard case law as it has laid down exhaustive procedures relating to the validity of DNA tests and their admissibility to prove parentage.

The following observations are very important and are generally referred to regarding such cases: (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 nonaccess in order to dispel the presumption arising under Section 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. Further the court said Blood-grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence, which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for this refusal. RECOMMENDATIONS OF MALIMATH COMMITTEE: Apart from this, general guidelines have also been provided by the Malimath Committee Report,

1. Sec. 313 of the CR.P.C, which deals with the power of the court to examine the accused, must be amended so as to draw adverse inference against the accused if he fails to answer any relevant material against him therefore, making it easy for the law enforcers to use DNA tests against him. 2. A specific law should be enacted giving guidelines to the police setting uniform standards for obtaining genetic information and creating adequate safeguards to prevent misuse of the same. 3. A national DNA database should be created which will be immensely helpful in the fight against terrorism. 4. More well-equipped laboratories should be established to handle DNA samples and evidence. 5. Efforts should be taken to create more awareness among general public, Prosecutors, judges and police machinery. REFORMS REQUIRED: - The 185th Law Commission Report, the findings of the Malimath Committee and the principles evolved in various case laws in the courts have to be considered by the Legislature. It is very important for the legislature to either amend Section 112 of the Indian Evidence Act so as to make DNA tests permissible or to pass a separate statute dealing with the validity of DNA tests regarding the issue of child paternity. Without a positive intervention from the legislature, these issues will be shrouded with doubt. CONCLUSION: - The presumption of legitimacy is an important presumption for the social setup prevalent in India. But, it is equally important to take into account the changing social trends and the changing nature of marital relationships and thereby incorporating new provisions to accommodate these changes. With the increase in cases of divorce and maintenance being filed, it becomes important to have DNA tests a valid proof for or against the parenthood of a child. The new amendments or statutes should be in the best interest of both the child and the couple. The consequences of a DNA test must be analysed carefully and safety measures should also be meted out in cases of the child turning out to be illegitimate. The Legislature should also look into the question of DNA tests being violative of Article 21 of the Constitution and it should come up with safeguards to protect the Right to Personal Liberty. 9

The relevance of DNA tests in paternity issues is increasing in todays world and it is high time that we come up with a separate legislation dealing with it.

REFERENCE The Modern Law of Evidence by Adrian Keane. Universals Criminal Law Manual. thefreeldictionary.com The website of LSU Law Center legalserviceindia.com Article on Legitimacy by Oxford University Comparative Law Forum (OUCLF)

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