Report No. 185
This section reads as follows:
"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 it could have been begotten."
This section is based on the maxim pater est quem numtioe demonstrant which means 'he is the father whom the marriage indicates'. This section lays down a rule of 'conclusive proof' as to legitimacy of a child born
(1) During the continuance of a valid marriage between the child's mother and any man, or
(2) If the child was born within 280 days after the dissolution of marriage, the mother remaining unmarried.
The only exception provided in the section is where 'it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten'.
The presumption is rebut and can be displaced only by a strong preponderance of evidence and not by a mere balance of probabilities (Goutam Kundu v. State of W.B.) (AIR 1993 SC 2295). See also S.P.S. Balasubramanyam v. Suruttayan: AIR 1997 SC 756.
Section 112 has no application when maternity is in dispute and not paternity (Nand v. Gopal: AIR 1940 PC 93). Upon proof of a marriage on a certain date, the Court may regard as proved the subsistence of a marriage on a subsequent date unless and until it is disproved or else, in its discretion, call for its proof (Ismail v. Monin: AIR 1941 P.C. 11). If the people, especially the relatives, treat and acknowledge a person as the legitimate son of his father by forging a bond of matrimony, it is a strong piece of evidence to hold that the person is a legitimate offspring of this father (K. Govinda Raju v. K. Muniswami Gounder: AIR 1997 SC 10; Mahabhat v. Md. Ibrahim: AIR 1929 PC 135.
Unless absence of access is established, presumption of legitimacy cannot be displaced (Perumal v. Ponnuswami AIR 1971 SC 2532 relying on Venkateswarlu v. Venkatanarayana : AIR 1954 SC 176 and Ammathayee v. Kumaresan: AIR 1967 SC 569.
Access or non-access mean no more than existence or non existence of opportunities for marital intercourse (Venkteswarlu v. Venkata Narayana AIR 1954 SC 176). The section requires the party disputing paternity to prove non-access in order to dispel the presumption. Access does not mean actual cohabitation (Goutam Kundu v. State of WB: AIR 1993 SC 2295).
In Krishnayya v. Mahipathi: 40 CWN 12 (PC), the Privy Council did not consider whether on an issue of legitimacy, evidence of impotency could be admitted. (The section as such does not permit such evidence). The presumption is conclusive and can only be displaced by proof of non-access at the relevant time. There must be positive proof of non-access. (Venkateswarlu v. Venkatnarayana : AIR 1954 SC 176); see also Kanta Devi v. Poshi Ram AIR 2001 SC 2226.
The fact that the wife had a paramour (G.R. Sane v. D.S. Sonavane & Co. AIR 1946 Bom 110) or that the husband had undergone vasectomy operation (unless there is reliable evidence that the vasectomy operation was successful) [Chandramathi v. Pazhetti Balam : AIR 1982 Ker 68; Chirutha Kutty v. Subramaniam AIR 1987 Ker 5], is not suffient to rebut the presumption. Nor is the serious illness of the husband sufficient (Narendra v. Ram Gobind: ILR 29 Cal. 114 (PC).
In Smt. Duktar Jahan v. Mohammed Farooq : AIR 1987 SC 1049, it was held that the fact that the child was born about seven months after the marriage, could not lead to the conclusion that the child could have been conceived before the date of consummation of the marriage.
The Hindu Law and Mohammedan Law raise similar presumptions as stated in the section, regarding legitimacy, but while English law gives importance to the time of birth, Mohammedan law gives importance to the time of conception.
The policy of English law until 1949 was that neither the testimony, nor the declaration, out of court, by parents were admissible to prove access or non access during marriage for bastardising a child. The rule was abolished in England by the Law Reform (Miscellaneous Provisions) Act, 1949 and Section 45(1) of the Matrimonial Cause Act, 1965 now provides:
The discussion under Section 112 can now be divided into two parts A and B. (We are omitting from consideration cases of artificial insemination, surrogate motherhood, cloning which require separate treatment).
(A) Whether questions of paternity under Section 112 should include cases arising out of void marriages which are declared void but where, children of such marriages are made legitimate by any law, and whether a provision deeming such marriages also valid for the limited purposes of Section 112, should be introduced?
(B) Whether any exceptions, other than 'non-access' should be introduced in Section 112 such as impotence or sterility, proof that a person is not the father as perk blood tests or DNA tests?
(A) Whether void marriages should be brought within Section 112 apart from viodable marriages:
In the 69th Report, after discussing various aspects of the law, reference was made to the fact (see para 54.9) that the statutory of law of marriage, particularly in the case of Hindus, has gone through various changes.
The section requires that the 'valid marital status' must be obtaining on the date of 'birth' of the child. Here the section states that there must be valid marriage at the time of 'birth' (see 69th Report para 54.17, 54.18, 54.26). Under the English Common law the child need not be conceived during the marriage. It is sufficient if the parents are married as on the date of birth (para 54.19). The 69th Report points out that the Privy Council was wrong in Pedda Amani v. Zemindar of Marungapuri (1874) LR 1. 1A 293 (PC) in holding that the English law and the Indian law were the same (see para 54.25 to 54.27).
Having pointed out these aspects, the 69th Report refers to the need to amend the words "or within two hundred eighty days of its dissolution" to be enlarged to cover cases of birth 'within two hundred eighty days of its being declared void or avoided". (see paras 54.29 to 54.37).
Section 112 speaks of a 'valid marriage' and a person born (a) during the continuance of a valid marriage or (b) within 280 days after 'its dissolution', the mother remaining unmarried (i.e. remaining unmarried during those 280 days). Then, unless 'non-access' is proved, the husband is treated as the 'father' and as the section uses the word 'conclusive'. Except 'non-access', there is no other plea permissible by the husband.
The 69th Report considered whether, apart from cases of voidable marriages which are already included, marriages null and void should also be included.
In that behalf, it is necessary to note, refer to the changes in the Hindu Marriage Act, 1955. So far as the Hindu Marriage Act, 1955 is concerned (before the 1976 Amendment), it contained a provision in 1955, in the context of 'legitimacy' as follows:
"Section 16: Where a decree of nullity is granted in respect of voidable marriages under Section 11 or Section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
Provided that nothing in this section shall be construed as conferring upon any child of a marriage which is declared null and void, annulled by a decree of nullity any rights in or to the property of any person other than that of the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."
Under the section, as it stood in 1955, a void marriage required parties to the marriage under section 11 to file a petition in Court. (Section 12 referred to voidable marriages which may be annulled by a decree of nullity). In cases under Section 11, where the marriage was void and where none files a petition, the benefit of Section 16 of the 1955 Act was not accruing to the child born out of such a void marriage.
Hence, in 1976 Section 16 was amended to make legitimate such children even if none filed a petition for declaring the marriage a nullity.
After the 1976 Amendment to Section 16 of the Hindu Marriage Act, 1955, it reads as follows:
"Section 16. Legitimacy of children of void and voidable marriage,- (1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriages had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the degree of nullity.
(3) Nothing contained in sub-section (1) or sub section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.
There is a similar provision in the Special Marriage Act; and, even earlier, in Section 21 of the Indian Divorce Act, 1869.
The Supreme Court, in PEK Kalliani Amma v. K. Devi: AIR 1996 SC 1963, in a judgment having far reaching effects and implications (see Mulla, 18th Ed., 2001, Vol. 2 p. 173) examined subsection (1) of Section 16 and observed that by virtue of the words 'notwithstanding that a marriage is null and void under Section 11', this section stands independent of Section 11. The amended provision which intended the conferment of legitimacy on children born of a void marriage, will operate despite the provisions in Section 11 which has the effect of nullifying only those marriages held after the Act came into force and which are performed in contravention of Section 5.
By virtue of the legal fiction, children born of a void marriage would have to be treated as legitimate for all purposes including succession to the property of their parents. The net effect being that the benefit of legitimacy is conferred upon any child born either before or after the date of amendment. That would mean that even if a marriage had been contracted at the time when there was a legislative bar to such a marriage, the offspring of such a marriage would be treated as legitimate. Such a child would be entitled to succeed to the property of his or her parents (ibid, Mulla, p. 174).
Sub-section (2) relates to children of a voidable marriage in respect of which a decree of annulment may be granted by Section 12. Even when the validity of the marriage is challenged by either party and still the marriage is not annulled, it would be a void marriage, and the children of the parties to such a marriage would undoubtedly be legitimate. If, on the other hand, the marriage is annulled at the instance of either party, the children born of such marriage are, by operation of subsection (2), to be deemed to be their legitimate children for all interests and purposes, except that by virtue of subsection (3) such children cannot claim any rights in or over property of any person other than parents. (Mulla, ibid, p. 174).
The Supreme Court stated that that law as it stood before the 1976 amendment to the Hindu Marriage Act, 1955 was unsatisfactory. In the earlier edition of Mulla, it was pointed out that a child born of a void marriage would not get the protection of section, unless a decree was passed by the Court at the instance of one of the parties. Now subsection (1) states, after the 1976 Amendment, that in the case of a void marriage, the child shall be legitimate (whether born before or after the 1976 Amendment), and "whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held void otherwise than on a petition under this Act."
This new provision overrules the principle laid down in Thulasi Ammal v. Gowri Ammal AIR 1964 Mad 118 and other cases, where the Court held, under the old Section 16, that unless a decree of nullity is passed the child begotten or born before the decree cannot be treated as legitimate. Section 11 applies to marriages after the 1955 Act whereas section 12 applies whether the marriage was solemnized before or after the commencement of the 1955 Act.
We may now summarise.
(a) Firstly, going back to the 69th Report, it was stated, (see para 54.30) that the section so far as 'paternity' is concerned, which referred to a 'Valid' marriage, dissolved, must apply also to 'void' marriages, though the section apparently covered voidable marriages. The defects in the old Section 16 of the Hindu Marriage Act, 1955 and in the old Section 26 of the Special Marriage Act, 1954 were referred to in that context. It was pointed out that Section 21 of the Indian Divorce Act, 1854 applied to children born before the decree and such a policy must be reflected in the above Acts also (see para 54.31).
(b) Secondly, it was stated in the 69th Report (see para 54.33) that there was a doubt if a decree for nullity was different from one of dissolution, as referred to in old Section 16 of the Hindu Succession Act, 1955. (present in Section 16 (2) after the 1976 Amendment). The doubt remains, it is said, even in relation to other Acts. Further section 16(2) requires conception before a decree to be proved first, before the deeming provision can apply.
The position, it was stated, was different under the Evidence Act under which the date of conception need not be proved, and proof of the date of birth is sufficient to legitimacy.
(c) Thirdly, the 69th Report referred to void marriages. The 69th Report, having stated that Section 112 should apply to cases of void marriages also under Section 112, both in the first and second parts of Section 112, by appropriate amendment, the 69th Report formulated a draft of Section 112, as follows:
"112. 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 or after it was annulled or avoided, the mother remaining unmarried, shall be condusive proof that such person is the legitimate child of that person, unless it came to be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
Explanation.- Where, by any enactment for the time being in force, it is provided that the children of any marriage which is annulled or avoided shall nevertheless be legitimate, the marriage shall, for the purpose of this section, be deemed to be valid until it is annulled or avoided."
One would wonder why in the opening part of Section 112 after the words, 'valid marriage', the words 'void marriage' are not included in spite of the recommendation that 'void' should be used in both parts. It will be noticed that this was accomplished so far as the opening part was concerned, by the Explanation which, for purposes of Section 112, deems a marriage valid, even if it was void, where there are laws made legitimising children of such void marriages. Obviously, 'legitimacy' of such children and right to deem a man, a father or not, must have some nexus.
That is why the Explanation was added. In that event, once the Explanation is added like that, it does not become necessary to add the words 'void marriages' in the opening part of Section 112 because the Explanation deems them valid if there is a law legitimizing children of such void marriage. In our view, with great respect, this was the proper way to draft and bring 'void marriages' within the scope of Section 112. Obviously, the Explanation covers void marriages under Section 16(1) of the Hindu Marriage Act, 1955 (before and after the 1976 Amendment), and those under the Special Marriages Act, 1954.
The Commission stated that there is already a similar provision in Section 21 of the Indian Divorce Act, 1869. Under the Explanation, such void marriage are to be deemed 'valid' in the opening part of Section 112 till annulled by Court. Further, the word 'annulled' proposed to be added in the body of Section 112 covers cases of void marriages while the words 'dissolved' or 'avoided' 507 refer to valid marriages avoided. We do not understand why both the words 'dissolved' or 'avoided' are both used in Section 112. In our view, it would be better to use the words 'declared nullity' for marriages which are void and use the words 'avoided by dissolution' for voidable marriages.
In our view, Section 112 and its proposed Explanation could be redrafted also (subject to some more additions as stated hereinafter) and also by redrafting the Explanation by highlighting the deeming of a void marriage as valid).
We shall next deal with issue (B) as to whether grounds other than 'non-access' have to be introduced.
(B) Non-acces.- whether any other exception should be added?
Section 112, as already noticed, uses the words, "conclusive proof" and refers to 'non-access' as the sole exception. Therefore, as the language of the section stands, no other evidence is permissible except non access, to prove that a person is not the father. This was what was held in several decided cases and also recently by the Supreme Court in Kanti Devi v. Poshi Ram 200(CS) SCC 311 = AIR 2001 SC 2266. That case concerned DNA evidence but the Supreme Court refused to permit the evidence on the ground that except 'non-access' no other evidence is permissible to prove that a person is not the father.