Report No. 185
This section refers to birth during marriage and proof of legitimacy. One of the important issues is whether, apart from non-access, other exceptions based on blood/DNA tests be permitted or proof a sterility or impotency of the husband should be permitted. We have recommended two more exceptions but there is more stringent proof 'conclusive proof' will be the standard. We have also dealt with cases of avoidance of marriage and nullify apart from dissolution of marriage.
We recommend that section 112 should be revised as follows:
"112. Birth during marriage conclusive proof of legitimacy except in certain cases.- The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days,
(i) after the marriage was declared nullity, the mother remaining unmarried, or
(ii) after the marriage was avoided by dissolution, the mother remaining unmarried, shall be conclusive proof that such person is the legitimate child of that man, unless
(a) 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; or
(b) it is conclusively established, by tests conducted at the expense of that man, namely,
(i) medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or
(ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the Court, that that man is not the father of the child; or
(iii) DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the Court, that that man is not the father of the child; and
Provided that the Court is satisfied that the test under sub-clause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to accepted procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that that man is not the father of the child.
Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him.
Explanation I.- For the purpose of sub clause (iii) of clause (b), the words 'DNA genetic printing tests' shall mean the tests conducted by way of samples relatable to the husband and child and the words "DNA" mean 'Deoxyribo-Nucleic Acid'.
Explanation II.- For the purposes of this section, the words 'valid marriage' shall mean a void marriage till it is declared nullity or a voidable marriage till it is avoided by dissolution, where, by any enactment for the time being in force, it is provided that the children of such marriages which are declared nullity or avoided by dissolution, shall nevertheless be legitimate."