The Indian Evidence Act, 1872 (hereinafter “the IEA,1872”) was inherited from the British. Though robust and detailed, the act has not been able to keep pace with the dynamic changes in society, science & technology. The IEA, 1872 was conceived much before many scientific breakthroughs to ascertain parentage came about, particularly blood group matching (1920s), Deoxyribonucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests (1960s). These scientific techniques were not even in discussion of the legislature at the time of enactment of the IEA, 1872. The advancement of science and technology has rendered certain statutory provisions of the IEA,1872 obsolete.

Section 112 of the IEA,1872 provides “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”. A literal reading of this provision creates a presumption of legitimacy of a child born out of a valid marriage between his parents or born within two hundred 280 days after the dissolution of the said valid marriage, provided his mother remained unmarried for such period. The legislature in its wisdom had enacted this provision to protect the welfare of a child born out of a valid marriage- to protect the child from being bastardised and from facing social stigma.

To refute the presumption of legitimacy of such a child, it would have to be proved that during the subsistence of the said valid marriage, the parents of the child did not have access to each other. The abovementioned provision is based on the rule settled by the House of Lords in 1837 in the case of Morris v Davies – 5 CI & F 163. The rule set a high threshold. According to it, to rebut the presumption of legitimacy, the impossibility of sexual intercourse between the parties at the relevant time when the husband could have been the father of the said child was to be established. The burden to prove ‘non-access’, or lack of an opportunity of sexual intercourse between the parties, would be on the party contending so. Proof of non-access is a question fact, dependent on the circumstances of each case.

The exponential growth in science and technology has rendered this provision out dated. DNA Paternity tests today can be 99.9999% accurate – Eastern biotech & Life Science Company in U.A.E as cited it Veeran v. Veeravarmalle AIR 2009 Mad 64. Comparing genetic profiles of a man and a child, can ascertain paternity of that child with laser like precision. This makes the DNA test scientifically accurate and irrefutable.

Although, DNA tests are not specifically mentioned as an exception to the conclusive proof of S.112 IEA,1872, Indian courts have in certain cases allowed parties to conduct the same to ascertain paternity. However, this practice is not uniform or regulated. In Nandlal Wasudev Badwaik v. Lata Nandlal Badwaik AIR 2014 SC 932 the Supreme Court of India placed the accuracy of the DNA test over the conclusive proof under Section 112 IEA,1872. It stated “when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

DNA tests today can’t be demanded by the person refuting paternity as a matter of right. Such a person must file an application under Section 45 of the IEA,1872 and move the court to direct that DNA test be conducted. It is therefore upto the court’s discretion to allow or disallow such an application. This highlights the lacuna in the law. At present, there are no guidelines or rules governing DNA tests altogether. After filing the application u/s 45 IEA,1872 the discretion rests solely with the court to allow or disallow. This is indeed problematic and indicative of the static approach of the legislature. It leaves numerous questions unanswered- In what cases should such a test be allowed? Should it only be allowed in cases relating to inheritance? Or in other routine matters? Which labs should be accredited for this purpose? What happens if the party is not satisfied with the result of the test – can a second test be permitted?

This calls for a dynamic, holistic and resolution oriented approach by the legislature, factoring in ground realities and keeping pace with advancements in technology. Thus, the legislature must amend Section 112 of the IEA,1872 and give the right to rely on irrefutable scientific evidence to the party challenging paternity. Rules and guidelines must be framed to regulate this right. The surefire nature of scientific evidence will help ease the burden of proof of paternity.

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Ansh Singh Luthra

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