The meaning of the above maxim is that the father is he who is married to the mother. The above maxim is well accepted in India through section 112 of the Indian Evidence Act, 1882 (the Act). The section 112 of the Act says as follows:-“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...
The meaning of the above maxim is that the father is he who is married to the mother. The above maxim is well accepted in India through section 112 of the Indian Evidence Act, 1882 (the Act). The section 112 of the Act says as follows:-
“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.”
As per this section, it is abundantly made clear that the child born, either during the existence of a valid marriage between the mother of that child and her husband or born within two hundred and eighty days of the dissolution of such marriage when the mother remains to be unmarried, is the child of that husband. The only exception is the existence of proof of non-access of both the parties to each other at any time when the child could have been begotten. Other things remain to be the same; the legitimacy is a conclusive proof. Now we may look into section 4 of the Act, which defines ‘conclusive proof’.
“4. Conclusive proof.-When one fact is declared by this Act be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.” (Emphasis added)
In the above context, upon proof of the fact that the child born either during the existence of the valid marriage, or within the period mentioned in section 112 of the dissolution of the marriage, while the mother being unmarried (altogether, the one fact), the court shall presume that the child is the offspring of that husband, AND the court SHALL NOT allow anybody to disprove such proof (the fact of conclusive proof), unless the non-access of both the parties to each other at any time when the child could have been begotten is shown.
The above version is the bare law, where no other option operates.
But, in Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and Anr.(AIR 2014 SC 932=(2014) 2 SCC 576), the Supreme Court of India has allowed the husband to conduct DNA Test of the parties concerned to disprove the paternity of the child of his legally wedded wife, though there was no proof existed as to the factum of non-access. The reasons for allowing the application of the husband are not available in the said judgment. What are available are the reasons for accepting the result of the DNA test, when the proof of non-paternity was proved through the well founded and widely accepted scientific test. And those grounds are established with pedagogically sound reasoning, lest the embarrassment of a modern educated society and the husband, who might have compelled to own the child (proved to be not of his own), unless the Court had accepted to move against the basic idea of sections 4/112 of the Act, when the conflict between a provision of a law and a scientifically proved fact is in existence. And, ratio is finally declared by the Hon’ble Court as:-
“In our opinion, 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.”
The Court also said that:-
“19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary.”
It may be noted that as per the law, the husband had to prove first that the parties to the marriage had no access and that leads to the possibility of doing DNA examination, not vice versa.
The DNA profiling technique was first reported in 1986 by Sir Alec Jeffreys at the University of Leicester in England, United Kingdom. The sections 4 and 112 of the Act have been there ever since the enactment of the original Act. The clamor for leading evidence against the mandate of sections 4/112 of the Act has been there since long. In Smt. Dukhtar Jahan Vs. Mohammed Farooq (AIR 1987 SC 1049), the Supreme Court, while dismissing a claim for DNA test asserted that “This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.”
In Shyam Lal @ Kuldeep Vs. Sanjeev Kumar and Ors. (AIR 2009 SC 3115), the Supreme Court, quoted the following, from different judgments, both Indian and English:-
“10. Section 112 of the Indian Evidence Act is based on English law. Section 112 reproduces rule of English law that it is undesirable to inquire into paternity of child when mother is married woman and husband had access to her. Adultery on her part will not justify finding of illegitimacy if husband has had access. [See: Nga Tun E v. Mi Chon A.I.R. 1914 UB 36].
11. More than a century ago in Bhima v. Dhulappa (1904) 7 Bom LR 95), the Court aptly observed that Section 112of the Evidence Act is based on the principle that when a particular relationship, such as marriage, is shown to exist, then its continuance must prima facie be preserved.
12. The fact that a woman is living in notorious adultery, though of course it amounts to very strong evidence, is not, in itself quite sufficient to repel this presumption [See: R v. Mansfield 1941 1 QB 444, 450].
13. In 1947 All LJ 569 at page 572 Hardan Singh v. Mukhtar Singh and Anr., the Allahabad High Court observed:
The mere fact that a woman is immoral or is living in a house separate from that of her husband is having relations with other men is not sufficient to rebut the conclusive presumption of legitimacy which is raised by Section 112 of the Evidence Act, unless it is proved that the husband and wife had no access to each other during the period indicated in the section.
14. In Lal Haribansha v. Nikunja Behari ILR 1960 Cut 230, relying on Ma Wun Di and Anr. v. Ma Kin and Ors. 34 IA 41, the Court stated that:
It is the principle of law that "Odiosa et inkonesta non sunt in lege prae sumenda" (Nothing odious or dishonourable will be presumed by the law). So the law presumes against vice and immorality. One of the strongest illustrations of the principle, is the presumption in favour of legitimacy of children in a civilized society. But, where illegitimacy seems as common as marriage and legitimacy, a presumption of legitimacy cannot be drawn and legitimacy or illegitimacy will have to be proved like any other fact in issue.”
In Smt. Kanti Devi & Anr. vs. Poshi Ram (AIR 2001 SC 2226), K. T. Thomas, J speaking for the bench, observed:-
“11. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.”(Emphasis supplied)
All the above judgments are of the Two Bench of the Supreme Court. In Sundeep Kumar Bafna Vs. State of Maharashtra and Anr. (AIR 2014 SC 1745) another bench of the co-equal strength declared that, “A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Coequal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”
In a recent case, in Dipanwita Roy Vs. Ronobroto Roy ((2015) 1 SCC 365), a win win situation has arisen with respect to a question of DNA test to dispute with the paternity of a child. In this case, the order of dismissal of prayer for DNA examination by a Family Court was reversed by the High Court of Calcutta. When it came to the Supreme Court, by referring to Nandlal Wasudeo Badwaik , the Court held that, it was permissible for a Court to permit the holding of a DNA test, if it was eminently needed, after balancing the interests of the parties. And finally, the Court upheld the Order of the High Court with a caveat, giving the appellant-wife liberty to comply with or disregard it, and in case, she accepts the direction issued by the High Court, the DNA test would determine conclusively the veracity of accusation leveled by the respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof.
Regarding the burden of proof of the party, who assails that there was no access to the parties to the marriage, the Supreme Court, in Kanti Devi said:-
“The party who wants to dislodge the conclusiveness had the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative.”
In the above context the observation of Advocate Nizam Azeez Sait is worthwhile to note. He comments on the incongruencies of the judicial pronouncements in the following words:-“Judgments of Courts of law are not computer out puts ensuring consistency and absolute precision, but they are the products of human thoughts based on the given set of facts and the interpretation of the applicable law. Generally our Superior courts have been incumbent by erudite and scholarly Judges (Both Pre and Post Collegium eras), whose thoughts go great heights and result in fascinatingly sound verdicts, of course aided by able lawyers. Unlike Pre-programmed Computers, such human thoughts trek new terrains in interpreting the law and are capable of coming out with ideal innovative rulings/declarations of law in furtherance of justice as the situations demand. Therefore on many areas of Law we have doubtlessly authoritative judgments of Superior Courts with remarkable clarity and acceptability, which in addition to resolving the dispute between the parties in that case, also serve as beacon lights or precedents for the Subordinate Courts on subsequent similar issues. But Law is an immensely vast canvass and there are lots of blurred areas in it, both Statutory and Precedential”.
It may be noted that ever since the introduction of the DNA profiling by the science in 1986, the law remains to be the same. It is to be presumed that the Legislature is vigilant and by its wisdom, it has not made any change in the law. When there is Casus Omissus, the Court is not expected to fill it unless there is absolute necessity and the Court finds absurdity. The Constitution Bench of the Supreme Court, apart from in many other judgments, in Ashoka Kumar Thakur Vs. Union of India (UOI) and Ors. (OBC Judgment)= (2008 (5) SCALE 1) held that:-
“289. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature.”
It is not because of the non-availability of the scientific techniques like DNA examination in the past; the lawmakers have enacted the section 112 of the Act intertwined with section 4 of the Act. The language of section 4 is clear that no evidence shall be allowed to disprove the proof derived out of proof of the one fact. This disproof may or may not be by DNA of scientific examination. Whatever may be the mode of evidence of disproof, all are banned, of course, with a qualification. The Supreme Court, it seems, silently had redefined the maxim. The impact of Nandlal Wasudeo Bewail and its subsequent follow up in Dipanwita Roy will open the flood gate of applications for challenging the paternity of children in cases of that nature.
Hence, in the overall view, it is not presumable that there was an absolute necessity to redefine the maxim ‘Pater est quem nuptiae demonstrant’, which is being followed for long, both in India and England, on the basis of giving protection to the nobility of paternity and from bastadizing the children for reason not of them, when there is a legally wedded husband to the mother.
Abdul Khader Kunju, Asst. Public Prosecutor, Govt. of Kerala.