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Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     15 February 2012

Section 112 iea - too fair to the fairer sex ?

Section 112 of the Indian Evidence ACt provides for a irrebutable presumption of law i.e an arbitrary inference that law mandates the court to draw - and not allowed to be rebutted by contrary proof howsoever strong. 

S.112 says that when a child is born during the continuance of a lawful marriage of his mother and a man - or within 280 days of its dissolution - it shall be conclusive proof that the man is the father of the child. Meaning thereby birth during marriage - is conclusive proof of paternity.  This presumption can only be averted by negative evidences of non access i.e if the man can prove that he could not have had effective s*xual intercourse with the lady when the child could have been begotten. 

The Courts apparently have given it a liberal interpretation to prevent baztardization - and have shown that laws leans in favour of legitimacy. In this regard judgments like Banarsi Das v. Teeku Dutta (2005), Gautam Kundu (1992), and the latest - Bhuboni vs Secy, Orissia State Women's Commission (2010).  Courts have accepted that maternity admits of positive proof but paternity is a matter of inference, and this inference we'd have to make to serve a social purpose i.e prevent children from being rendered illegitimate/destitute. 

However - while working for our organisation I did came across a case where - a Man in an arranged marriage got a child through his wife 4 months into the marriage, the union being an arranged one. Even when his petition for annulment was pending. In collateral maintenance proceedings - he could not prove non access - (negative evidences are very hard to lead) and he was branded as the father.

Does the law need a re-look ? 

 

 



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 2 Replies

Ranee....... (NA)     15 February 2012

 

Bharat Chugh - Advocate (Delhi

Cant the father challnge it with DNA test?

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     15 February 2012

Mr.Ranee, I'll tell you what's been happenning at the courts with respect to this :-

1) Court's dont normally allow DNA tests - holding them to be violations of right to privacy.

2) Even when they do - even when it returns a negative finding - 112 overrides - and child is still legitimate child of that man - though something as accurate as DNA proves otherwise (Banarsi Das v. Teeku Dutta - 2005)


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