August 6, 2017 | Author: Ziad Ansari | Category: Legitimacy (Family Law), Marriage, Evidence (Law), Blood Type, Evidence
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LEGITIMACY OF A CHILD INTRODUCTION The legitimacy of the birth of a child is having socio-legal overtones. The Social status of an offspring rests upon the legitimacy of its birth. In legal point of view, the determination of legitimate paternity is necessary to establish legal heir ship for various purposes It is covered under 112of the Evidence Act States that ³The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two.. In legal point of view, the determination of legitimate paternity is necessary to establish legal heir ship for various purposes. hundred and eighty days after its dissolution, the mother remaining unmarried ,shall be conclusive proof that he is 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.´ PURPOSE Section 112 is based on the principle that when a particular relationship, such as marriage, is shown to exist, then its continuance must prima facie be presumed. Evidence that a child is born during wedlock is sufficient to establish its legitimacy and shifts the burden of proof to the party, seeking to establish its legitimacy and shifts the burden of proof to the party, seeking to establish the contrary. Maternity admits of positive proof, but paternity is a matter of inferences as maternity is a fact and paternity is a surmise. It can be said with certainty as to which women gave birth to particular individual but is it is impossible to say as to who was that man from the mother begot the child. The connection of child with his father may be ascertained by the subsisting facts. In India the law of succession depends upon the paternity. Even the surnames of children are also derived from the side of the father. There are only a few areas having maternal heritage. Besides solving the succession disputes, legitimacy also stands as a factor in the disputes between wife and husband, especially in divorce cases law always leans in favour of legitimacy and not in favour of bastardising the children. That is why a child born during the continuance of a valid wedlock is conclusively presumed to be legitimate son of that person to whom the mother is married. There is maxim pater est quem nuptiae demonstrant (father is he who nuptials indicate).

For the purpose of drawing a conclusive presumption as to the legitimacy the following conditions have to satisfy: (1) Child must be born during the subsistence of valid marriage. (2) There must be continuance of a valid marriage if presumptions have to be made under sec 112. If the marriage is void or irregular or invalid presumption is not to be made under sec 112. (3) Presumption under sec 112 must be drawn by all the courts, civil, criminal, and revenue governed by Evidence act. (4) The provisions of sec 112 are as much applicable to the offspring’s of a marriage between Hindu’s, as it is to children of spouses professing other faiths including Mohammadan. (5) The presumption as to paternity in sec 112 only arises in connection with offspring of a married couple. On the birth of a child during marriage the presumption of legitimacy is conclusive no matter how soon the birth occurs after marriage. (6) If wife is having illicit connection with another person during continuance of a valid marriage and the child born during the continuance of valid marriage.

Section 112 deals with legitimacy of a child Section 112 – 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 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. Principle lay in section 112 – the section is based on principle that when a particular relationship, such as marriage, is shown to exits, then its continuance must be prima facie be presumed. Comments – The wordings of section 112 of Indian Evidence Act starts, stating, “Birth during marriage, conclusive proof of legitimacy”. Here the presumption is similar to that of the Latin maxim, ‘pater est quem nuptiae demonstrant’, meaning he is the father whom marriage indicates. From ancient times it is the presumption that if the husband was within the four seas, at any time during the pregnancy of wife, the presumption was conclusive that her children were legitimate. Under this section, there is a conclusive presumption that a child born during the continuance of a valid marriage is a legitimate issue of parents, no matter, how soon the birth is, after the marriage. When we look into the reasoning behind this notion, the only reason which comes up, is that it is undesirable to enquire into the paternity of child whose mother and her husband, had between them, a subsisting marital status and had access to each other. The law presumes strongly in the favor of the legitimacy of the off-spring. The husband, who is strongly disputing the point of legitimacy of the child, can only rebut on the issue of access and no-access, otherwise the legitimacy, in every case, is deemed. The very objective of this section seems to be gender biased, from its commencement. And, to decide the conclusiveness, only on the basis of argument will not render the purpose of judiciary in true sense. Moreover, there still lies an ambiguity in the contents of this section. Here the law states that if a child is born within 280 days, after dissolution of marriage, the legitimacy of that child is conclusive. Here, it seems that the law is a step ahead then the medical science, as the point regarding exact days of child birth, is not settled in medical arena, till date. It is basically an issue of medical science which has to be dealt with sincere scientific aptitude and by Laws of Nature. Deciding this issue, on the recourse of legal

arguments, is totally a faulty approach and the course, which we are following today, deliberately ends up in faulty conclusions. Basically, this section was formulated in year 1872, nearly 140 years ago. But, in last three decades, there is an unpredictable growth of scientific temperament. And, even the Legal Community is showing the impression of the same. The Courts readily admits the scientific evidences in case of theft, rape, murder and what not. But it is far beyond the reasonable understanding as why the issue of legitimacy is left open, to be decided by the legal interpretations and not by scientific techniques. Here, introduction and admission of DNA technology can actually be fruitful, to meet the ends of the justice. The development in DNA based studies is vast, complex and expanding on a monthly basis. In spite of repeated legal challenges, mainly in the USA, no two persons other than identical twins have been found to have identical DNA profiles, the possible number of presumptions far exceeding the population of the world. In paternity testing, DNA now allows positive determination of parenthood, rather than the statistical likelihood or exclusion offered by blood typing in former years. Further, there is one more recent technique whose probability of giving exact result is 99.9%. It is HLA testing. Blood group antigens, serum proteins, erythrocyte enzymes and salivary proteins are of importance in ascertaining the parentage with certainly and all of them are heritable characteristics, followed accepting genetic principles. When conventional blood group systems like ABO, Rh, MN, etc. are used in disputed parentage cases; the possibility of fixing the parentage cases, the possibility of fixing of HLA testing is used along with the conventional blood group systems in disputing parentage cases, the probability of fixing the parentage is about 99.9%.

Child born during the continuance of valid marriage There is a strong presumption that if a child was born during continuance of marriage, it is immaterial, how soon after the marriage, it was born. Moreover, the Courts had reached to the conclusion, regarding the parenthood, only because of the fact that the wife and husband were living in a same room. Here we have to broaden our mentality, while analyzing this point. Mere living together, does not conclusively decide that they had intercourse. This is an issue of love, affection and basic understanding between each other. It is highly probable, in the social system, like ours that they are staying together only because of social restrictions or because of some obligations but might not have any commitment for each other. There also arises the possibility that one of the spouses is eager for a child whereas the other does not feel any need of the child. And, if under such circumstances if a child is born, then the medical reasoning should be brought into the scenario, to determine the parenthood of that child.

More so ever, in the Criminal matters the character of a person also plays an important role and is considerable. But, this section is not interpreted in this manner. If a woman, although married, still living an adulterous life, her character would not rebut the presumption of legitimacy of children within 209 days of possible sexual connection. Here we have to consider the point of adulterous conduct of wife. So, here if the husband is disputing the parenthood, then his submission had got substance and only medical recourse can be taken, to determine the ultimate conclusiveness. But a similar contention was raised and rejected in the case where it was held that’ ‘in the view of the admitted evidence that the wife was living with the husband in the same room; it should be presumed that the pregnancy was due to the cohabitation with the husband. Similarly, where the child was born during the pendency of maintenance petition and the husband failed to prove "non-access" it was held that the child was legitimate off spring. But here, the point to be noted is that the wife was living an adulterous life. Even if the husband is seriously ill, then also the issue of presumption, under Section 112 cannot be rebutted. So, basically to the scope of this section is very narrowed down by such approach.

280 days This section also talks about the time period as to when the child is supposed to be born but it is entirely medical issue. Even, medical experts cannot tell us exact day and time, as to when child was born. They could only suggest a certain probable time period. If we go through the wording of section then a time of 280 days is being seems to be settled. But there is no rational behind this as to why not 260, or 300 days. And, even if, the medical experts do not have any firm stand on this point, then where from did the legal jurists brought the calculated numbers of 280 days. It is to be kept in mind that the birth of a child is a biological process and not a mathematical equation. If we go through the case laws, on that point, it is led enough that different courts have different view regarding the issue. If we look into Modi’s Medical Jurisprudence and Toxicology, under heading, ‘the maximum period of pregnancy’, various periods have been mentioned starting from 315 days to a period of about 349 days. Another Jurisprudential authority by Dr. Lyon in ‘Medical Jurisprudence for India ‘, it states that; ‘What is longest period, which human gestation may be’: 1. That this may be 296 days. 2. Most authorities agree in considering that the interval may be as long as 44 weeks or 308 days; but it might also extend to 311 days. Some of the authorities consider that the interval may extend to 46 weeks- 315 to 322 days.

Presumption and onus of proof under legitimacy The presumption of legitimacy under Sec.112 is conclusive and could be displaced by particular fact mentioned in the section itself i.e. non-access. In the latest case of Kamtidevi v. Poshram, the nature of conclusive proof as envisaged in Sec.4 of the Indian Evidence Act, 1872 vis-à-vis the nature of conclusiveness as depicted in Sec.112 of the Indian Evidence Act, 1872 is well graphically pictures by Justice Thomas, who observes that, "But section 112 itself provides an outlet to the party who wants to escape from the rigor of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time". His Lordship continues to hold that," Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads negative. The raison d’etre is the legislative concern against illegitimating a child. It is sublime public policy that children should not suffer social disability on account of the laches or lapses of parents". For the purpose of this Sec. 112, access and non-access sound the possibility for existence of opportunity for material intercourse. An authoritative interpretation of the word access can be found in the ruling of Privy Council in Karapaya Servai v. Mayandi, wherein it was held that, "their Lordships are satisfied that the word means no more than opportunity of intercourse". This legal principle was recognized in India also as could be seen in Chiluturi Venkates warlu v.Chilukuri Narayana. Even if husband got access during the wedlock period, still he can disclaim his fatherhood to the child. The issue of non-access is to be proved by the convincing legal evidence i.e. direct or circumstantial in the nature of strong, distinct, clear, satisfactory and conclusive. However, the high degree of proof for non-access is inevitable since the law favors legitimacy in the absence of contrary. The legal presumption under .Sec.112 can be displaced by clear and strong evidence to the effect that the husband and wife did not or could not have any access at any time when the child could have been begotten. It is also to be stated that Sec.112 follows the English law in adopting the date of birth and not date of conception as the test of legitimacy.

Section 112 of the Indian Evidence Act, 1872 lays down a rule of prudence and is based on the rule of natural justice and public policy. In Kamtidevi v. poshiram, Justice Thomas, while explaining the true import of Sec.112 observes that, "The section when stretched

to its widest compass is capable of encompassing even the birth of a child on the next day of a valid marriage within the range of conclusiveness regarding the paternity of its mother's husband, but it excludes the birth happened just one day after the period of 280 days elapsing from the date of the dissolution of that marriage." Imperative, it is to note that, the Sec.112 does not apply where the maternity of the appellant is in dispute and not his paternity. In deciding the issue of legitimacy, the evidence rendered either by the husband or wife is crucial. In English law, the rule is the evidence of the husband or the wife to the effect that there has been no access by the husband to the wife is inadmissible, since any of such evidence paves way to basterdize the child. The House of Lords in the classic case of Russel v. Russe, held that either the wife or husband is not allowed to render evidence of non-intercourse after marriage to basterdize a child born in wedlock. The striking feature of Sec.112 of the Indian EvidenceAct, 1872 is that it never renders inadmissible of the evidence of either wife or husband. Burden of proof, as the matter.' of rule cannot be fixed either on the husband or wife in deciding the proof of paternity i.e. burden of proof oscillates in each case depending upon the facts.

The requisite constitutional sanction in India The legitimacy presumption embodied in Section 112 of the Act is an expression of the legislative intent expressed in Article 15(3)1 of the Constitution of India, which enables the state to take proactive measures and also make special provisions for the protection of women and children. While Article 15(3) is contained in Part III of the Constitution which enumerates and declares the fundamental rights, this principle of public policy also finds its basis in various "Directive Principles of State Policy" contained in Part IV of the Constitution. Specifically, Article 39(f) of the Constitution allows legislation in favour of children in order to secure their childhood and safeguard their interests. Although the said Part IV is non-justifiable, the Constitution strongly encourages the legislature to make provisions espousing the principles enshrined in the sad part.

Conclusion So, a final solution to all this dilemma and uncertainty can be the DNA mapping and comparison of DNA of a child and the parents. In the recent case of State through C.B.I. v. Amaramani Tripathi the paternity of a six months old fetus in the womb of deceased was conclusively established with the help of DNA test. Further, the Courts, these days, is heavily relying on scientific proofs, in the cases of murder and rape. Even there are cases where the conviction is made by following the medical evidences. So, it is hightime that the scientific aptitude should be brought in the issue of determination of legitimacy of a child. The primary object of the law of evidence is to find out the truth or otherwise of the disputed facts. One of the main principles of the law of evidence is that the best evidence must be given in all cases. As Lord Denning MR has observed: 'The object of the Court is always 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. It is trite knowledge that the value and the utility of presumptions must diminish in the presence of superior evidence capable of being established. Cochran J. summed this up quite poetically in Stumpf v. Montgomery where he observed 'presumptions... may be looked on as the bats of law, flitting in the twilight, but disappearing in the sunshine of facts. As mentioned above, the legislature itself has abandoned the said presumption in various jurisdictions across the world, but at the same time, the presumption remains stringently enforced in various other countries, including India. In a democracy, changing the legislative policy is the prerogative of the elected. Keeping within the bounds of the legislative policy, the author has chalked out a certain steps which need to be taken in order to make DNA evidence more receptive in India. DNA evidence can incontrovertibly establish the paternity of the child. Specific amendments are required to the Act as well as to the Criminal Procedure Code, 1973("the Code") to make the said statutes amenable to DNA testimony. Section 112 of the Act should be amended to incorporate DNA evidence along with evidence of non-access as a means to prove or disprove paternity, and the legitimacy presumption must be made rebuttable. Section 45 of the Act should be suitably amended to explicitly include DNA evidence.

Section 293(4) and of the Code should also be amended to include "DNA experts" in the list of experts. The courts should be given the discretion to require a party to the

proceedings to submit to a DNA test, and should take into account the welfare of the child. The protection of Article 20(3) and Article 21 of the Constitution should not defeat a court order in paternity proceedings that a person should undergo a blood or DNA test. The observation of the Indian Supreme Court regarding the veracity of DNA evidence must be imported in paternity actions. Strong evidence of multiple accesses can be treated as a condition precedent to challenge paternity. The degree of evidence may be the same as required to establish a prima facie case of adultery while seeking divorce under Section 13(1) (i) of the Hindu Marriage Act 1955.This will ensure that the provision is not misused and allow for a much needed better balance.

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