Presumption of Spurious Paternity

Presumption of Spurious Paternity

Author: Adv. Apoorva, Patna High Court

“Maternity is a fact while paternity is a surmise”

This statement proves the irony of our Indian legal system. It assumes that the maternity of a child is a positive proof while paternity has to be made out of various inferences and circumstantial evidence.

S.112 IEA says that if a child is born during the continuance of a marriage, it is presumed that he/she is the legitimate child of the couple in the wedlock. Further, if a child is born within 280 days after the dissolution of the marriage and the woman remains unmarried, the child will be presumed to be the legitimate child of the couple. This presumption shall be a “conclusive proof”. However, there remains an exception to the “non access clause”. To deny his paternity to the child, the alleged father has to prove that he did not have access to the mother of the child during the period the child is expected to have been begotten. This rule has been derived from the maxim, “Pater est quem nuptiae demonstrant” which means he is the father, whom the marriage indicates. This presumption in Section 112 of the IEA addresses the proof of the paternity of the child.

Nevertheless, it must be recognized that this presumption is raised only when the lack of access is not proved by the husband. After this, it becomes a conclusive proof which is irrebuttable as per the definition given in sec 4 of the IEA.

Sec 4 of IEA says “When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.” This provision takes away the discretion of the Court and by virtue of this; the Courts cannot allow the other party to produce evidence in order to disprove the alleged fact. It prohibits any evidence from being produced to combat the effect of the presumption. Therefore, the only chance to rebut the paternity of the father is before this presumption becomes conclusive proof.

The law presumes everything in the legitimacy of the child (Semper Praesumitur Pro Legitimatione Puerorum). Therefore, the burden to prove the lack of access is very strict on the husband. Here, a mere balance of probabilities will not be followed and a strong preponderance of the evidence must be proved.[1] 

Unfortunately, we do not have any legislation or guidelines for situations where the paternity of a child is in question and the party in a dispute is held accountable only for his inability to prove that he did not have access to the wife during the period of conception of the child. This presumption of paternity was added in the Indian Evidence Act when there was no recourse to scientific methods for finding out the truth about the father of the child. However, in today’s modern era, where scientific methods like blood sampling, DNA or RNA Testing, etc are available, following such an old presumption seems to be unfit. This in turn also defeats the ultimate purpose of the law, that is, to provide justice to the child as there are chances that the husband might be falsely presumed to be the child’s father merely because he was unable to prove his non-access. This forced accountability on the husband in no way helps the child as the father would never be able to accept this child as his own especially after the dispute where he was willing to prove that the child did not belong to him.

In the case of Bhabani Prasad Jena v Convenor Secretary, Orissa State Commission for Women & anthr [2], it was held that “when there is an apparent conflict between the right to privacy of a person not to submit himself forcibly to a medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether, for a just decision in the matter, DNA is eminently needed. DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of `eminent need’ whether it is not possible for the court to reach the truth without the use of such test.” Here, it was held that once the conclusive proof of Sec 112 has been raised, thereafter, it cannot be rebutted by a DNA Test.

In the case of Goutam v State of West Bengal,[3] the Court says that “This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”.”

The Supreme Court in the case of Kamti Devi v Poshi Ram[4]  held “The word access in Section 112 of IE Act connotes only the existence of an opportunity for marital intercourse… The raison d’etre is the legislative concern against the legitimization of a child.”

In the case of Banarasi Dass v Teeku Dutta,[5] it was held by the Apex Court that “We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Evidence Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case, the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.”

This rule, which accepts that “access” refers to only the existence of an opportunity for marital intercourse, should not be appreciated in this modern generation. Even though this policy was framed to avoid the children from suffering any social disability because of the laches or lapses of the parents, this provision seems to be biased in favour of the wife. The husband who is strongly rebutting the legitimacy would be forced to be the father of the child only because he failed to prove the non-access clause. This non-access test does not prove to be the most reasonable test for deciding the fatherhood of the child.

This rule is in favour of the child and the mother and was formulated in the times when a woman was considered to be a man’s property. It was a societal assumption that she cannot have any relationship outside marriage and that women are victims. The provision talks about stereotype women from the older times when this legislation was drafted, where women lived at the peril of her husband. It relates to the times when women were objectified and chances of them being victimized at the hands of the males were highly probable.

But in today’s modern era, when society has progressed, women are considered no less to men. The Constitution of India confers equal status to both men and women and prohibits discrimination on the basis of the gender of the person[6]. Women are treated equally to men in every field. Lord Keith in R v. R24[7] declared “marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband.” Lord Denning states[8], “A wife is no longer her husband’s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern.” It can be rightly quoted here what Stuart Mill said, “The legal subordination of one sex to another is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege n the one side, nor disability on the other.”

The Constitution of India is an organic and living document and it promotes amendments in the laws with the transformation in the perception of the society.  This law laid down in S.112 belongs to the pre-Constitutional era and is discriminative towards the man. The idea of transformative justice must be recognized and the law should be revised to deprive it of any sort of gender biasness.

Lately, when the Courts have been accepting scientific evidence in cases like rape, murder, etc, then following the legal presumption, as laid down in Section 112, is not very progressive for our legal system.

In B.R.B. v. J.B.,[9] it was held that “The conclusion of the whole matter is that a judge of the High Court has the power to order a blood test whenever it is in the best interests of the child. The judges can be trusted to exercise this discretion wisely. I would set no limit, condition, or bounds to the way in which judges exercise their discretion. To object of the court always is to find out the truth. When scientific advances give us fresh means of ascertaining it, we should not hesitate to use those means whenever the occasion requires.” Similarly, in the case of Nandlal Wasudev Badwick v Lata Nandlal Badwick[10], it was held that DNA Test prevails over the presumption of conclusive proof under Section 112 of IEA. It was said that a DNA test is a scientifically accurate test and while Sec 112 creates only a rule of presumption, DNA Test actually establishes the real fact of the relationship and thus, the fact will precede over a presumption. When the truth is actually ascertained by scientific evidence, no presumption has a role to play.

In Shradha v. Dharmal[11], a three Judges Bench of the Apex Court held:

“1. A matrimonial Court has the power to order a person to undergo medical tests.

 2. Passing of such an order by the Court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.

3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the Court, the respondent refuses to submit himself to medical examination, the Court will be entitled to draw an adverse inference against him.”

The Malimath Committee Report on Reform of Criminal Justice System[12] also recommended including DNA Testing as a scientific method to resolve the disputed paternity of the child. The 185^th   report of the Law Commission of India recommended a similar amendment of the provision in the Indian Evidence (Amendment) Bill, 2003[13].  It transpires from the above proposal that the Law Commission has recommended two more exceptions that where there is string proof; a conclusive proof will be the standard for the same. So, as far as DNA evidence is concerned, the Bill prescribes that a mismatch is conclusive proof for the person not being the father.[14]

The Court in Common Cause (A Registered Society) v Union of India[15] has observed:-

“The law must take cognizance of the changing society and march in consonance with the developing concepts. The need of the present has to be served with the interpretative process of law. However, it is to be seen how much strength and sanction can be drawn from the Constitution to consummate the changing ideology and convert it into a reality. The immediate needs are required to be addressed through the process of interpretation by the Court unless the same totally falls outside the constitutional framework or the constitutional interpretation fails to recognize such dynamism.”

Conclusion

Recently, we have seen an unpredictable growth of scientific temperament and the legal community is also showing the impression of the same. Thus, instead of transferring any fictitious liability on the father, the approach should be to employ scientific recourses available and prove the paternity of the child beyond any reasonable doubt. Recourse to modern technologies should be sought and suitable modifications should be made in the S.112 IEA. It is to be appreciated that the birth of a child is a biological process and cannot be justified by any legal presumption. Any assumption of paternity due to the “mere living together” of two people is an erroneous presumption and appropriate medical recourse should be taken to determine the ultimate conclusiveness.

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[1] Goutom Kundu v St. of West Bengal (1993) 3 SCC 418

[2] 2010 SC

[3] (1993) 3 SCC 418

[4] (2001) 5 SCC 311

[5] (2005) 4 SCC 449

[6] Article 15, Constitution of India

[7] (1992) 1 AC 599

[8]  The Due Process of Law (London, Butterworths, 1980, at page 212)

[9] [1968] 2 All England Reports 1023

[10] AIR 2014 SC 932

[11] 2003 (3) ALD 1 (SC): (2003) 4 SCC 493: 2003 (6) AIC 138: 2003 (51) ALR 289.

[12] Report of Committee on Reforms of Criminal Justice System (Malimath Committee Report), March 2003, Government of India, Ministry of Home Affairs.

[13]THE INDIAN EVIDENCE (AMENDMENT) BILL, 2003, para 62, Sept. 18, 2018, http://lawcommissionofindia.nic.in/rePorts/185threport-partv.pdf

[14] 2006 Cri LJ , Journal Section at 102