Академический Документы
Профессиональный Документы
Культура Документы
Vishwas Jorwal
B.A.LL.B(Hons.)
6th sem.
Roll No. 52
Table of content
1. INTRODUCTION
4. ACKNOWLEDGEMENT OF PATERNITY
10. Conclusion
11. BIBLIOGRAPHY
Introduction
(1) That the person was born during the continuance of a valid marriage
between his mother and any man, or
(2) That the person born within two hundred and eighty days after the
dissolution of the said marriage, the mother remaining unmarried, unless
it can be shown (in both the cases) that the parties to the marriage had
no access to each other at any time when the person could have been
begotten.
Where the paternity of a child, i.e., its legitimate descent from its father,
cannot be proved by establishing a marriage between its parents at the
time of its conception or birth, such marriage and legitimate descent may
be established by acknowledgement.
The father of Allahdad Khan, a Sunni, died leaving behind two sons and
three daughters. Allahdad filed a suit to be the eldest son of the
deceased and was therefore entitled to a 2/7 of the share in the estate.
The defence was that the plaintiff was only step-son of father having
been born of their mother before she married their father, the deceased.
The plaintiff contended that even if he failed to prove the son of the
deceased but he had been acknowledged as the son of deceased on
several occasions. Justice Mahmood, held that the plaintiff had
established himself as the legitimate son of the deceased and was,
therefore entitled to succeed to him.
1. The acknowledger must possess the legal capacity for entering into a
valid contract.
7. The acknowledger should be one who could have lawfully been the
husband of the mother of the child, when it was begotten. Thus, where
there is direct proof that there was no marriage between the man and
the mother of the child, or that if there was such a marriage between
them, it would have been void, and then the presumption of legitimacy
cannot be raised by acknowledgement, however strong such
presumption may be. (Rashid Ahmed v. Anisa Khatun, (1932) 34 Bom
L.R. 475 PC. 59 I.A. 21)
However, the Privy Council held that the children were illegitimate. In this
case of divorce by three pronouncements, before A and could remarry,
should have been married to another man in the interval and divorced
by that man.
As there was no proof of such marriage with another man and a divorce
by him, a presumption of remarriage between A and could not be
raised, and hence, the children were held to be illegitimate, and could
not inherit from their father.
The doctrine relates only to cases where either the fact of the marriage
itself or the exact time of its occurrence with reference to the legitimacy
of the acknowledged child is not proved in the sense of law, as
distinguished from disproved. In other words, the doctrine applies only to
cases of uncertainty as to legitimacy, and in such cases,
acknowledgement has its effect, but that effect always proceeds upon
the assumption of a lawful union between the parents of the
acknowledged child.
(i) During the continuance of a valid marriage between his mother and
any man; or
(ii) 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 be shown that the parties to the marriage had no access
to each other at any time when he could have been begotten.
The principle of this section can be rebutted when the mother of the child
is not a wife, but a mistress.
Father and mother of the appellant had been cohabiting for number of
years and were treated by others as husband and wife. Six children
including the appellant were born out of their relationship. There was no
proof that her father and mother had subsisting earlier marriage. It could
be said that there was valid marriage between husband and wife. Where
evidence of marriage is insufficient, the court is not barred from drawing
presumption of marriage for long living together under sections 112 and
114 of the Act. Where parties lived together for more than twelve years,
three children were also born, there was presumption of valid marriage
between the two, the mere fact that no evidence of saptapadi or
sampradan could be produced now was held of no consequence.
Gestation:
The period of gestation mentioned is this section is 280 days. It does not
mention any maximum period of gestation. If a child born after 280 days
and after dissolution of marriage, the effect of the section 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
child born within 280 days of the husbands death is a legitimate child.
Child born 305 or 330 days after last opportunity for coitus is the child of
the father. The period of gestation of 313 days cannot be said to be
unreasonable. The usual period of gestation from the first date of the
coitus is between 265 and 270 days and delivery is expected is about
280 days from the first day of the menstruation period prior to a woman
conceiving a child. It is true that sometimes the delivery can take place a
few days before or after the said period of 280 days. Normal child born
after normal delivery 171 days after first coitus between wife and
husband. Normally, it should be held that the child was not of the
husband.
DNA Test:
The DNA is the genetic material in the cells of human body or any other
living organism. Each cell receives half of DNA from biological mother
and other half from biological father. It determines human character,
behaviour and body characteristics. But non-access should have been
proved.
The prayer for blood test was not accepted by the court. The court held
that it cannot compel the father to submit himself DNA Test. Same view
was held in Kamti Devi case by the Supreme Court regarding
admissibility of DNA evidence in resolving paternity dispute. The parties
to the marriage had no access to each other and to test blood group
violates right under article 21 of the Constitution. Order directing DNA
Test of child without hearing parties would be violative of natural justice.
Where there is evidence to show that the husband had no access to wife
at relevant time when child could have been conceived adverse
inference can be drawn against the husband from his proved conduct of
not getting DNA Test conducted.
The DNA Test for proving paternity of the child can be ordered in
exceptional and deserving cases only if it is in the interest of child. DNA
Test cannot be ordered as a matter of course in every case. It is
permissible in exception case. The use of DNA test can be resorted to
only if such test is eminently needed. Order for DNA Test by the
Womens Commission is proper.
Conclusion