Ayushi Pragya, B.A.LL.B (Hons), Jindal Global Law University
ABSTRACT
Section 112 of the Indian Evidence Act 1872 states that any person born during the continuance of a valid marriage between the mother and a 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.1 This presumption will stand good unless 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. This provision is based on the English law notion of legitimacy and deems to protect the ostracization of an innocent child and an unchaste woman from society. However, the only exception from such a presumption is by proving non-access between parties to the marriage. This paper attempts to establish the need for the admissibility of scientific evidence to rebut the presumption constructed in section 112 of the Act. In the first part, the paper thoroughly analyses the section and the reasoning behind its inclusion in the Act. After highlighting the flaws in the section, the paper demonstrates the exigency of DNA tests to determine the paternity of the child. The paper concludes by analyzing the courts’ stand in conducting DNA tests and places emphasis on the need for the amendment of the section in dispute.
