BACKGROUND AND OVERVIEW
In a case, wife delivered a child after 203 days of marriage. The child was born after 38 weeks of marriage and wasn’t premature. It was said that wife was pregnant before marriage and it was held that she has committed fraud by concealing the facts from husband who had all the rights to know about this. It was also ascertained that there is no need of calling in aid the presumption under section 112 of Evidence Act.
SECTION 112 OF EVIDENCE ACT
Section 112 of the Indian Evidence Act, 1872 mentions the legitimacy of a child born during wedlock. The law presumes that if a child is “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…”, it is conclusive proof of its legitimacy unless it can be proven that the parties to the marriage did not have any access to one another.
It is important to establish laws related to paternity under civil, criminal laws. The law also presumes the legitimacy of a child born during a valid marriage as conclusive. The only exception in such circumstances under the law is non-access between the parties.
Section 4 of the act lays down the following degrees of presumption
- May presume
- Shall presume
- Conclusive proof
This is the reason why section 4 and 112 should be read together. The section is based on the presumption of morality and may, in certain circumstances, hold the party disputing paternity unjustly accountable. However, section 112 provides for limited exception to the presumption of legitimacy.
MORALITY AND LAW
Law and morality are two different concepts and law may reflect the principles of morality from time to time but cannot be the sole basis for that.
- Law governs the society through rules
- Law is based on sanctions
- Rules facilitate the peaceful existence of society
DNA TEST FOR PATERNITY DETERMINATION
DNA tests are conclusive admissible evidences under Indian Legal System. However, initially it was contradicted with the right mentioned under Article 21 and faced criticism.
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