The Indian Evidence Act, 1872 was inherited from the British. Though robust and detailed, the Act has not been able to keep pace with the dynamic changes in society, science and technology.

The Act was conceived much before many scientific breakthroughs to ascertain parentage came about. For example, blood group matching came in the 1920s, and Deoxyribonucleic Acid (DNA), as well as Ribonucleic Acid (RNA) tests, came into being in the 1960s. These scientific techniques were not even in the discussions of the legislature at the time of enactment of the Evidence Act.

The advancement of science and technology has rendered specific statutory provisions of the Act less helpful, if not obsolete.

Section 112 of the Act provides:

“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”.

A literal reading of this provision creates a presumption of legitimacy of a child born out of a valid marriage between his parents or born within two hundred 280 days after the dissolution of the said valid marriage, provided his mother remained unmarried for such period. The legislature, in its wisdom, had enacted this provision for three reasons:

• To protect the welfare of a child born out of a valid marriage.

• To protect the child from being bastardised.

• To save the child from facing social stigma.

Thus, the Act bestows legitimacy to the newborn based on the access of the parents to each other. It disregards the biological legitimacy based on scientific evidence.

For refuting the presumption of the legitimacy of such a child, it would have to be proved that during the subsistence of a valid marriage, the parents of the child did not have access to each other.

The above-mentioned provision is based on the rule settled by the House of Lords in 1837 in the case of Morris v Davies [5 CI & F 163]. The law set a high threshold of rebuttal of the presumption. According to the aforementioned case, the burden to prove ‘non-access’, or lack of an opportunity of sexual intercourse between the parties, lies on the party contesting so. Generally, it's the father, who challenges the legitimacy. Thus, he has to prove his non-access to the mother.

Hence, the proof of non-access is a question of fact, dependent on the circumstances of each case, and it does not have any scientific validity. Therefore, evidence of non-access may or may not be irrefutable.

However, of late, the exponential growth in science and technology has questioned this provision, which is solely based on the non-access of the father to the mother. As per the Eastern Biotech & Life Science Company in UAE, the DNA paternity test today is 99.9999% accurate [cited in Veeran v. Veeravarmalle]. Comparing genetic profiles of a man and a child can ascertain the paternity of that child with laser-like precision. This makes the DNA test scientifically accurate and irrefutable.

Although DNA tests are not explicitly mentioned as an exception to the conclusive proof of Section 112, Indian courts have, in some instances, allowed parties to conduct the same to ascertain paternity. However, this practice is not uniform or regulated.

In Nandlal Wasudev Badwaik v. Lata Nandlal Badwaik, the Supreme Court of India placed the accuracy of the DNA test over the conclusive proof under Section 112. The Court stated,

"when there is a conflict between a conclusive proof envisaged under the law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former."

The DNA test today can’t be demanded by the person refuting paternal legitimacy based on non-access as a matter of right. Such a person must file an application under Section 45 of the Act and move the court to direct that DNA test be conducted. It is then up to the court’s discretion to allow such an application. This discretion highlights the gap in the law.

At present, there are no guidelines or rules governing DNA tests altogether This is indeed problematic and indicative of the static approach of the legislature. It leaves numerous questions unanswered - In what cases should such a test be allowed? Should it only be allowed in cases relating to inheritance? Which labs should be accredited for this purpose? What happens if the party is not satisfied with the result of the test – can a second test be permitted?

This lacuna in the law calls for a dynamic, holistic and resolution-oriented review of the Evidence Act by the legislature. It also demands to factor in ground realities and keep pace with advancements in science and technology.

Thus, the legislature must amend Section 112 and pave the way for the party challenging legitimacy to rely on irrefutable scientific evidence. The surefire nature of the scientific evidence will not only help ease the burden of proof of paternity and speed up the trial, but also put the questionable legitimacy at rest forever.

The author is a practicing lawyer at the High Court of Delhi. He can be contacted at anshsinghluthra@gmail.com.