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Report No. 185

Successive Marriages:

But before we refer to 'impotence', we shall dispose of a plea based on successive marriages. In respect of this plea, we do not think that any provision be recommended. It was pointed out that if a woman was married soon after dissolution of an earlier marriage, and then a child is born, the second husband is to be presumed to be the father of the child. This is called 'turbatio sanguints' in continental jurisprudence. Such a situation could arise also in cases where a statute required a gap between dissolution of the first marriage and the date of the second marriage.

No doubt, in England, it is permissible to prove that the child was born of the first marriage. (Inre Overbury v. Mathews: 1954(3) All ER 307 (see para 54.47 of 69th Report). The 69th Report says (para 54.24) that a man who marries a woman who was pregnant must be deemed to be the father of the child (see Halsbury's Laws of England, Vol. 1, para 691, notes 12, 13). Quoting Coke on Littleton para 244(a). See also Gardner v. Gardner: (1877) A.C. 723; Lloyd v. Powell Duffry Steam Coal Co. Ltd.: 1914 AC. 733; R v. Luffe : (1807)8 East 198 (p. 208).

The law is the same in USA in several States. We may refer to Wingmore Evidence (1981) (Suppl 2000-2001)(para 2527 at p. 1279) in so far as this aspect is concerned. In Zaperach v. Beoven: 6 Ohio App. (3d)17(1982), it was observed:

"a man who marries a women knowing her to be pregnant is presumed in law to be the father of the child when it is born without formal acknowledgment"

The principle is based on the common law rules of human conduct that normally a man may cohabit with a woman before marriage and after the woman becomes pregnant, he marries her. But, if he knows he is not the father, he may not marry her at all. We do not therefore think that any specific provision be made in the matter of a pregnant woman marrying another person and the birth of a child thereafter.

Having dealt with the above type of case, we shall now take up the new exceptions like (1) impotence or sterility (2) blood tests proving a man is not the father and (3) DNA tests proving a man is not the father.



Review of the Indian Evidence Act, 1872 Back




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