Report No. 69
The next point concerns the question whether the presumption under the section is rebuttable by evidence other than evidence of non-access. For the present, we shall concentrate on the first stage, i.e., during the continuance of marriage. In English common law, the presumption was regarded as rebuttable, not only by evidence showing non-access in the sense of opportunity for intercourse, but also by other evidence showing that the child was not the result of intercourse between the mother and her husband. This negative fact can be shown, for example, by blood group evidence1 or, it seems, by evidence about the use of contraceptives.2
Of course, the standard of proof at common law for rebutting the presumption was supposed to be high,3 but the matter is now settled by statute4 which makes it clear that the test is one of probability.
1. Now section 125, Code of Criminal Procedure, 1973.
2. Cross on Evidence, (1974), p. 119.
3. Francis v. Francis, (1959) 3 All ER 206.
4. Section 26, Family Law Reform Act, 1969, (infra).
54.39. Statutory provision in England.-
The present law in England permitting rebuttal of the presumption is statutory,1 and the provision is so worded that in civil proceedings the presumption may be rebutted by evidence which shows that it is more probable than not that the person is illegitimate or legitimate, as the case may be. The relevant provision is to be found in the Family Law Reform Act, 1969, section 26, which reads-
"26. Any presumption of law as to the legitimacy or illegitimate of any person may in any civil proceedings be rebutted by evidence which shows that it is more probable than not that the person is illegitimate or legitimate, as the case may be, and it shall not be necessary to prove that fact beyond reasonable doubt in order to rebut the presumption."
1. Section 26, Family Law Reform Act, 1969 (c. 46).
54.40. Reverting to section 112, we may note that the rigidity of section 112 was noted in a recent Kerala case.1 But it is pointed out that the Legislature alone can change the rigour of the law, and not the Court. The court cannot base a conclusion on evidence different from that required, by, law, or decide on a balance of probability which will be the result if blood test evidence is accepted. The following observations were made:-
"The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case. These rigours are justified by considerations of public policy for there are a variety of reasons why a child's status is not to be trifled with. The stigma of illegitimacy is very severe and we have not any of the protective legislation as in England to protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably not the father. But, the legislature alone can change the rigour of the law and not the Court. The court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted."
1. Vasu v. Santha, 1975 Kerala Law Times 533, cited in the Yearly Digest (April 1976), Col 598 (G. Vishwanath Aiyer, J.).
54.41. The judgment also discusses the question of blood tests. "Before a blood test of a person is ordered, his consent is required. The reason it that this test is a constraint on his personal liberty, and cannot be carried out, without his consent. Whether even a legislature can compel a blood test, is doubtful. In any case, no consent was given by any of the respondents. It is also doubtful whether a guardian ad litem can give his consent. Therefore, in these circumstances, the Munsif was right in refusing the prayer for a blood test of the appellant and respondents 2 and 3.
The maximum that can be done, where a party refuses to have a blood test, is to draw an adverse inference. Such an adverse inference which has only a very little relevance here will not advance the appellant's case to (any) extent. He has to prove that he had no opportunity to have a sexual intercourse with the 1st respondent at a time when these children could have been begotten. That is the only proof that is permitted under section 112 to dislodge the conclusive presumption enjoined by the section."
54.42. A New Zealand case cited by Cross1, though decided long ago, is interesting as demonstrating the absurdity to which the determination of a question of fact may be driven if the presumption is not rebuttable. In that case, the white wife of a white husband gave birth to a child of Mongol stock, her paramour being Chinese, and yet the presumption of legitimacy was held not to be rebutted. It was suggested to us that having regard to the emergence of blood group evidence, it is desirable to make the presumption rebuttable2?
1. Cross on Evidence, (1974), p. 118.
2. See Blood Group Evidence, infra.
54.43. Presumption not rebuttable in India under present section.-
Decided cases1-4 on section 112 establish that the presumption can, at present, be rebutted only by proof of non-access. This, it was stated, creates anomalies, and the resultant position is an artificial one, particularly in view of scientific developments which can now furnish very reliable evidence, at least of a negative character.
1. Sukla Ram v. N.K. Monbra, 74 Cal WN 118 (135), para. 30.
2. Jagannath v. Chinna Swamy, AIR 1932 Mad 39.
3. Samual v. Annammal, AIR 1934 Mad 310.
4. Bormma v. Dharmappa, AIR 1969 Mys 17.
54.44. Suggestion not accepted.-
The suggestion made to us was that for the reasons given above, the presumption should be rebuttable not merely by evidence of non-access-which is already allowed-but, in civil cases1, by other evidence. In regard to criminal cases, the present position was to continue, since the rebutting evidence may not, in most cases, be able to establish guilt beyond reasonable doubt. We are not, however, inclined to accept the suggestion even for civil cases, as we do not wish to add to the kind of evidence that may throw any doubts on the legitimacy of children.
1 Cf. section 26, Family Law Reform Act, 1969 (Eng).
IX. Successive Marriages
54.45. Two successive marriages-Recommendation.-
A difficult question relating to the section must now be dealt with-namely, the case of two successive marriages and the operation of the presumption in that situation. We have referred above1 to the two stages at which the section applies-(i) the duration of the marriage and (ii) the stage thereafter. The first stage covers the period of marriage. The second stage relates to the subsequent period. The presumption under the section might lead to unrealistic consequences in the case of a child born during the second marriage of a woman, where the second marriage and the birth take place soon after dissolution of the first marriage. Since the mother does not remain unmarried, the second stage given in the section does not apply; but the first stage, as given in the section, applies in relation to the second marriage.
The first part of the section, as now worded, literally applies to such a situation in regard to the second marriage. We may keep aside the first marriage as not relevant to the present discussion. Under the first part of the section, "the fact that any person was born during the continuance of a valid marriage2 between his mother and any man 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". The requirement that the wife must remain unmarried does not come in the way of the presumption when we are considering the second marriage. The child is to be regarded as the child of the second marriage, if born during its continuance-except where there is evidence of non-access.
1. See discussion under "Introductor.- two stages", supra.
2 I.e. the second marriage.
54.45A. Second marriage soon after termination.-
What may be pointed out is that the general rule that birth in lawful wedlock is presumed if the child is born during the subsistence of a valid marriage-that is, the woman's present husband is presumed to be the father of the child-becomes unrealistic when the second marriage takes place soon after the dissolution of the earlier marriage and the child is born very soon thereafter. In such cases, it is not unlikely that the child was the child of the first marriage. This situation is known in continental jurisprudence as a "turbatio sanguints", which is a situation where the child born during the second marriage must have been conceived during the existence of the first marriage.
54.46. Provisions prohibiting second marriage.-
Statutory provisions or other rules of law relating to divorce prohibit a divorced spouse from entering into a second marriage during a certain period after divorce-which period is prescribed by the particular statutory provision1 of rule2 of personal law. But, even after complying with these provisions or rules, a problem of paternity can conceivably arise. Moreover, the statutory provisions do not apply to the death of the husband, if a widow marries soon after the death of her first husband and a child is born a presumption of paternity for the second husband cannot be regarded as appropriate. Of course, proof apart from presumption is often difficult. But the point to be made is that the drawing of a presumption would certainly not be appropriate.
1. E.g. the Hindu Marriage Act
2. E.g. the rule relating to Iddat in Muslim Law.
54.47. Position in England apart from statute.-
In England, it is, in such circumstances, permissible to show that the child was the child of the first husband. In Re Overbery,1 the mother of the intestate was twice married-first, at the age of twenty-one years, on July 4, 1868, to George Rawlings who died on January 25, 1869, and second, on July 27, 1869, to John William Shephard. On September 24, 1869, the intestate (a girl) was born. In the certificate of her birth she was described as "Matilda Rawlings", her father as "John William Shephard", and her mother as "Matilda Shephard, late Rawlings, formerly Mook". On May 28, 1941, the intestate died without issue or parents.2
On a summons to determine, .for the purpose of the distribution of the intestate's estate, the paternity of the intestate, it was held that the presumption that a child born within nine months of the termination of marriage by the death of the husband was legitimate offspring of that marriage should prevail, and the intestate should be deemed to be the lawful child of the first husband, George Rawlings.
1. Overbery (deceased) Shephard (in re:1 v. Matthews, (Chancery Division) (1954) 3 All ER 307 (310) (Harman, J.).
2. Facts taken from the head-note in All England Reports.
54.48. Desirability of avoiding anomalies.-
Thus, in England, the rule for this particular situation is different,1 even at common law. Moreover, by a statutory provision, the presumption is now rebuttable2 in England by less strong evidence than before.
1. Overbery (in re:), (1954) 3 All ER 308 (310).
2. Section 26, Family Law Reform Act, 1969, supra.