Unjust Law

Imagine a man marries today and his wife delivers a baby tomorrow. The man asserts that he is not the father of that baby. Law shuts his mouth and does not permit him to bring any evidence to prove that it is not his child. This is what the effect of Section 112 of the Indian Evidence Act is! Section 112 says that the fact that any person was born during the continuance of a valid marriage between his mother and any man shall be ‘conclusive’ proof that he is the legitimate son of that man. The man in the above example can succeed only in one circumstance. That circumstance is that he had no access to his wife at any time when the child could have been begotten. But ‘access’ and ‘non-access’ is interpreted by the Supreme Court as existence and non-existence of opportunities for sexual intercourse; it does not mean sexual intercourse (See Chilukuri Venkateshwaralu v. Chilukuri Venkatanarayana (1954) SCR 424). So proving ‘non-access’ is very difficult in view of this interpretation of ‘access’ and ‘non-access’. Say for example, husband will have to prove that he was abroad during the period within which the child could have been begotten. Because if he is in India, he certainly can have access to the woman, meaning he has always ‘opportunity’ to meet that woman anytime. The Court says man has ‘access’ in such case and access does not mean existence of sexual intercourse.

Blood group test can in some cases prove that the man is not the father of that child. Moreover, modern scientific DNA test can conclusively prove or disprove the paternity in any case. But the law has not taken note of these scientific discoveries. The Court cannot even admit any evidence to disprove the presumption of paternity because Section 112 raises ‘conclusive presumption’ in favour of paternity in such cases. There are many presumptions under the Evidence Act. But many of them are rebuttable where the phrase ‘the court may presume’ or ‘the court shall presume’ is used. If the presumption under Section 112 would have been of any of these types, there would not have been any objection. But the presumption under Section 112 is conclusive. No proof to the contrary is allowed. There is no justification for making this presumption conclusive. Law should try to find out the truth with the help of the proof wherever possible. Resort to the ‘presumptions’ should be rare. ‘Conclusive presumption’ should not find any place in the Evidence Act. Why the other side should not be heard? Why the contrary evidence be not scrutinised and weighed? Why the eyes of the law be closed and the hands of the courts tied by providing ‘Conclusive Presumption’?

In view of the modern scientific advances the paternity of a child can be easily determined by DNA test. When the science authentically says that a baby is not the child of a particular man, law denies this fact and does not even allow the proof to be admitted. This is, in other words, law providing for ‘conclusive proof’ that the Earth is flat!