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The term Presumption is nowhere defined in the Indian Evidence Act. It essentially refers to the process of obtaining some information based on a potential or a result of some actions taken generally that increase the likelihood. According to Stephen, the presumption is a legal principle that states that courts or judges must make a certain inference from a specific fact or piece of evidence until and unless the veracity of that inference is disproved. Presumptions and inferences are grounded on a link between two facts that have been widely observed. A presumption relieves the initial burden of proof from the party in whose favour a fact is presumed. According to Section 112, unless the parties did not have any contact at any point during which the child could have been conceived, any person born out of a continuing valid marriage between his mother and any man or after the dissolution of such marriage within 280 days, the mother remaining unmarried, is conclusive proof that he is a legitimate child of such man to whom the woman is or was married[1].  All these conditions are usually satisfied in the normal course of a marriage and living together. The legal adage ” pater est quem nuptiae demonstrant,” which means “he is the father whom the marriage indicates,” is the basis for this section. The legislature has intended to maintain the sanctity of marriage and protect the legitimacy of a child by preventing bastardization. Consideration is given to the date of birth on which the child is born rather than the date of conception to determine legitimacy. Thus Indian position is similar to English law. So what is necessary is that child is born out of wedlock regardless of whether he was conceived before marriage or after its dissolution.


All children born into a marriage are assumed to be the husband and wife’s lawful children. According to Section 4[2], this presumption of legitimacy is regarded as conclusive evidence. As stated in Section 112, the court must consider the other fact as proven when one fact is determined by this act to be conclusive proof of another. The court cannot accept additional evidence to refute a fact when it is pronounced conclusive proof of the other fact. This situation typically arises when it is against government policy or in the best interests of society.


If a party can demonstrate that they had no access during the time the child was begotten or conceived, the presumption of legitimacy can be negated. Access or lack thereof refers to the availability or absence of opportunities for sexual intercourse during the marriage. Since the law favours presumption, evidence demonstrating a lack of access must be convincing and unequivocal. The inability of the male to have sexual contact with the mother when he was away in another city or at a distance from her can be used to establish non-access, as evidence that he was impotent for the entire period during which the child could have been born. However, if the husband is unable to substantiate any of these, he will be assumed to be the child’s biological father. In Chiruthakutty v. Subramaniam[3], the child was held as the legitimate child of the husband who had undergone a vasectomy. The court held that vasectomy was not sufficient by itself to overthrow the presumption of legitimacy. Only a strong predominance of accessibility can invalidate the assumption.


Nowadays, it is quite challenging for the husband to prove non-access. At the same time, it is claimed by scientists that by matching blood groups and DNA fingerprints, paternity can be established. 


Under the old legal position, the only way conclusive proof could be rebutted was by proving non-access, no other method was permissible under the act. In GautamKunduvs the State of West Bengal[4], the appellant-husband contested the child’s paternity and requested a blood test on the child to refute the assumption. In dismissing his appeal, the court noted that neither the CrPC nor the Evidence Act contains any procedures that would allow a judge to order the performance of such a test. The court relied on BhartirajvsSumeshSachdeo[5]to emphasize that it would be unfair to order a test for a collateral justification to support the infant’s claim if the court has protective authority over the child. The court thus concluded that:

  1. Blood tests cannot be ordered routinely by courts, so such prayers will not be considered.
  2. To overcome the presumption arising from section 112, the spouse must provide a compelling prima facie case establishing non-access.
  3. The court must carefully consider the impact of requiring a blood test, including whether it will label a kid as a bastard and the mother as an unscrupulous woman.
  4. No one can be forced to provide a sample of blood for analysis.


In Nandlal Wasudeo v Lata Nandlal[6], the Supreme Court noted that section 112 was enacted at a time when the legislature had not even considered modern technological advances or DNA testing. The DNA test is believed to have produced precise results. Even though Section 112 establishes a presumption of conclusive proof upon fulfilment of the conditions listed therein, this is rebuttable. The finest evidence should be presented to the court in the interest of justice. When there is a contradiction between conclusive evidence established by the law and internationally acknowledged evidence based on scientific progress, the latter must prevail. Thus, it was decided that the DNA test report supported the husband’s claim that he was not present when the child was born, and that despite the scientific evidence to the contrary, he cannot be forced to acknowledge the paternity of the child.

The issue regarding DNA tests again came up before the apex court in Dipanwita Roy v Ronobroto Roy[7]. That whenever a child’s legitimacy is in question before the court, Justice Khehar observed, the use of a DNA test is a highly delicate matter as there is a clash between contemporary science and a person’s right to privacy. The apex court beautifully balanced both while upholding both its judgment in the GautamKundu case as well as the NandlalWasudeo case. The court emphasized the legitimacy and scientific value of DNA tests which the legislature was unaware of when section 112 came into being. The court concluded that, after weighing the interests of the parties, it was appropriate for a court to permit a DNA test if it was urgently required. The court was hesitant to use the test on a regular basis, though, as a matter of course. If the court cannot arrive at the truth without using such a test, it must give fair consideration to the presumption under section 112 and apply this test. Therefore, if compelling prima facie evidence is shown for such a course of action, any order for a DNA test may be granted. The Supreme Court ruled that uncovering the truth serves the interests of justice the best. The greatest available science should be presented to the court, and it should not be left to rely exclusively on assumptions. The appellant was given the option of following or disobeying the directive to do a DNA test. However, an adverse inference may be drawn in case the party is refusing only because the result of such a test would be unfavourable to him/her.


In conclusion, a loophole in the law hinders a large number of people from getting assistance. Due to the narrow scope of exceptions to this regulation and the requirement of solid proof, DNA testing has not previously been permitted in situations where there is access between the parties and one of the parties wants to question paternity. The law may have shielded women and children in an era when society was unwelcoming to them, but due to developments in social morality and science, it is no longer enforceable. It is commendable that the Law Commission of India proposed amending section 112 of the Act in the Indian Evidence (Amendment) Bill, 2003[8]. The legislation aims to increase the number of tests that can conclusively prove paternity at the expense of the disputing party by including them among the exceptions to section 112. It also outlines specific procedures to ensure that the test is conducted safely and scientifically. The amendment’s proviso further provides that the man will be presumed to have relinquished his right to contest any allegation of parentage made against him if he refuses to submit to such tests. This is an urgent measure that closes the disparity while simultaneously placing it through strict guidelines, sustaining the protectionism-inspired ethos of law. Sadly, no one has yet approved this measure. It must be implemented as soon as feasible because it is sorely needed. A strict law that addresses the conclusiveness of DNA tests must be in force. It is crucial to examine the extent and application of Section 112 today, taking into account the significant evidentiary significance DNA tests provide, given the patchy legal framework that it replaces. However, because of the aforementioned mitigating circumstances, the tests cannot be routinely requested. As a result, the creation of legislation to address the problem at hand is necessary.

Author(s) Name: Rohan Aryan Srivastava (Delhi University)


[1]Indian Evidence Act, 1872, s 112.

[2]Indian Evidence Act, 1872, s 4.

[3]Chiruthakutty v Subramanian AIR 1987 Ker 5.

[4]Gautam Kundu v State of West Bengal(1993) Cri LJ 3233.

[5]Dr. (Smt.) Bharti Raj vSumesh Sachdeo And Ors.AIR 1986 All 259.

[6]Nandlal Wasudeo Badwaik vLata Nandlal Badwaik & Anr AIR 2014 SC 932.

[7]Dipanwita Roy vRonobroto Roy AIR 2015 SC 418.

[8] The Indian Evidence (Amendment) Bill, 2003, <>, accessed 18th September 2018, para 62.