india indian-penal-code indian-constitutional-law
Section 112 in The Indian Evidence Act, 1872 still valid and enforceable, in the face of DNA testing telling that the child is illegitimate?
<p><a href="https://indiankanoon.org/doc/817818/#:%7E:text=%E2%80%94The%20fact%20that%20any%20person,that%20the%20parties%20to%20the" rel="nofollow noreferrer">Here</a> is Section 112 in The Indian Evidence Act, 1872.</p>
<blockquote>
<p>Central Government Act Section 112 in The Indian Evidence Act, 1872
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 he could have been begotten.</p>
</blockquote>
<p>Is this valid now, when we can easily find it out by DNA test? Why can't the court just order a DNA test?</p>
<p><strong>Also what happens if the conditions of the section are fullfilled, like the husband and wife were living together, but DNA report comes negative. What will the Indian law do?</strong></p>
<hr />
<p>Edit: What if the husband takes a DNA test without the permission of the court, and the test came back negative? Now what will the court do?</p>
<p>If the court now forces the guy to raise and provide for the kid then we are living in a bizzare world.</p>
<p>If the court gives the man freedom and declares the child is illegitimate, then it's an off hand incentive for  all the men to get private testing done before going to the court.</p>

<p>To answer the last question, the court cannot order a DNA test, see <a href="https://main.sci.gov.in/supremecourt/2019/16194/16194_2019_42_1503_30503_Judgement_01-Oct-2021.pdf" rel="nofollow noreferrer">Kumar v. Gupta</a>, on privacy grounds: &quot;such tests impinge upon the right of privacy of an individual and could also have major societal repercussions&quot;. This is not a hard line, but</p>
<blockquote>
<p>it would be safe to conclude that in a case like the present, the
Court’s decision should be rendered only after balancing the interests
of the parties, i.e, the quest for truth, and the social and cultural
implications involved therein</p>
</blockquote>
<p>See <a href="https://main.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf" rel="nofollow noreferrer">Puttaswamy v. India</a>, the landmark case that established the constitutional right to privacy. DNA evidence is not absolutely barred, see <a href="https://indiankanoon.org/doc/505918/" rel="nofollow noreferrer">Banarsi Dass V. Teeku Dutta</a> and citations therein, finding most importantly that</p>
<blockquote>
<p>There must be a strong prima facie case in that the husband must
establish non-access in order to dispel the presumption arising under
Section 112 of the Evidence Act.</p>
</blockquote>
<p>Various rulings have clarified that Section 112 establishes a defeasible presumption, and not a mindless bar to evidence:</p>
<blockquote>
<p>It is rebuttable presumption of law that a child born during the
lawful wedlock is legitimate, and that access occurred between the
parents.</p>
</blockquote>
<p>In other words, yes and no. As summarized in that ruling, tests cannot be ordered routinely or as a form of discovery, &quot;There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act&quot;, the court must balance the consequences of ordering such a test (&quot;branding a child as a bastard and the mother as an unchaste woman&quot;), and a person cannot be compelled to give a blood sample.</p>
