DNA test to determine Paternity #indianlaws #marriagelaws

The Supreme Court dealing with the issue of presumption of birth during marriage has held

The Supreme Court dealing with the issue of presumption of birth during marriage has held as under: • As per Section 112 Indian Evidence Act, 1872, a child born during the continuance of a valid marriage shall be a conclusive proof that the child is a legitimate child of the man to whom the lady giving birth is married unless it is shown that the parties to the marriage have no access to each other at any time when the child could have been begotten. • Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. • The result of DNA test is scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. • Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. • The Court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. • 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. • Understanding the distinction between a legal fiction and the presumption of a fact – Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances, which would lead to the fact sought to be presumed. • Section 112 of the Evidence Act does not create a legal fiction but provides for presumption. [Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik & Anr.] (SC, 06.01.2014)