The Bharatiya Sakshya Adhiniyam, 2023 or "BSA, 2023" (previously the Indian Evidence Act, 1872 or "IEA, 1872") preserves the doctrine of conclusive presumptions, such as those related to the legitimacy of children under Section 116. Historically, such presumptions have provided social stability and protected familial bonds. However, as scientific evidence, particularly DNA testing, offers near-absolute certainty in determining biological relationships, courts face a critical question: should legal presumptions still hold when definitive scientific evidence suggests otherwise?

Conclusive Proof Under Bharatiya Sakshya Adhiniyam, 2023

The term "conclusive proof" signifies an absolute presumption. When the Adhiniyam declares that one fact is conclusive proof of another, the court, upon proof of the first fact, is bound to accept the second fact as true and cannot allow any evidence to disprove it[1]. This creates an irrebuttable presumption, meaning that once the primary fact is established, the court has no discretion to question or challenge the linked fact, nor can any evidence be introduced to refute it. "Conclusive proof" gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced to combat that effect.[2] Such a presumption typically arises when government policy or societal interests are at stake, as they create legal certainty on matters deemed too critical to allow for dispute[3].

Understanding Section 116 Of The BSA, 2023

Section 116 of the BSA, 2023 (earlier Section 112 of IEA, 1872) is based upon the Latin maxim "Pater est quem nuptiae demonstrant" which translates to "the father is he whom the marriage indicates." This principle establishes a presumption of legitimacy, asserting that a child born within a valid marriage is legally presumed to be the child of the husband.[4] Section 116 establishes that if a person is born during a valid marriage between their mother and any man, or within 280 days of the marriage's dissolution (provided the mother has not remarried), this fact serves as conclusive proof of the child's legitimacy. This presumption can be displaced only by proof of non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child.[5]

It is a principle of law that "Odiosa et inhonesta 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 the legitimacy of children in a civilized society.

The law leans in favour of the validity of marriages and favour of the legitimacy of children and not bastardy.[6] By upholding presumptions of legitimacy for children born within a marriage, the law supports social stability, minimizes stigma for children, and ensures continuity in matters of inheritance and familial rights. In this way, the legal presumption of legitimacy aligns with broader societal goals, reinforcing the family as a fundamental institution[7].

Problems With Section 116

The presumption of legitimacy of a child born during the continuance of a valid marriage under Section 116 poses a significant problem in cases where the alleged father is, in fact, not the child's biological father. In such instances, the application of Section 116 extends the presumption of legitimacy to this alleged father, legally attributing paternity to him even though he is not the real father. This can result in the man bearing responsibilities for a child with whom he has no biological connection, solely due to the legal presumption linked to the mother's marital status.

The reason for this presumption of legitimacy is that Section 116 was formulated in an era when modern scientific techniques, such as DNA and RNA testing, were unavailable for determining paternity.[8] At that time, the law focused on the principle of safeguarding a child's legitimacy to prevent potential social and legal complications that illegitimacy might bring. In Dukhtar Jahan v. Mohammed Farooq[9], the Court held that the rule of law under Section 112 is based on the dictates of justice and has always led the courts to uphold a child's legitimacy 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 that legitimating the child would result in rank injustice to the father.

However, with advancements in genetic testing providing accurate paternity determination these provisions could be reconsidered to align legal presumptions with scientific certainties. DNA has now become an invaluable tool in both paternity testing and forensic science. It can determine with 99.85% certainty that a man is not the father of a child. It can also confirm with 99.99999% certainty that a man is the father.[10] In Dipanwita Roy v. Ronobroto Roy[11], the Supreme Court also affirmed the view that DNA testing is "the most legitimate and scientifically perfect means" to establish the paternity of a child.

Relying on the accuracy of DNA testing methods, the Law Commission of India, in its 185th Report (2003) recommended an amendment to section 112 to include three more grounds for rebuttal, in addition to non-access. These grounds were a) medical tests to prove impotency b) blood tests and c) DNA tests. This recommendation has, however, not been given effect as of date.

Conflict Between Section 112 Of IEA, 1872 And DNA Evidence: The Kamti Devi Judgement

In Chilukuri Venkateswaruli v Chilukuri Venkatanarayana[12], the Supreme Court had settled the law that the presumption of conclusive proof under section 112 could be displaced only on proof of a particular fact viz., non-access to the wife. The decision in Gautam Kundu[13] did not alter this position.

Thereafter, in Kamti Devi v. Poshi Ram[14], the Supreme Court refused to give credence to a DNA test to dislodge the presumption once the factum of access was proved. Speaking for the court, K.T Thomas, J observed: "Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with DNA and 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 irrebuttable.

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 child from being bastardised if his mother and her spouse were living together during the time of conception." This was again upheld in the case of Banarsi Dass v. Teeku Dutta[15].

Therefore, in Kamti Devi and Banarasi Dass, the Supreme Court reinforced the strict application of Section 112 of the Indian Evidence Act, maintaining the presumption that a child born during a marriage is conclusively legitimate if the husband and wife were cohabiting at the time of conception. The Court acknowledged the scientific accuracy of DNA testing but concluded that even reliable biological evidence cannot rebut the legal presumption under Section 112.

Changing Perspective: The Nandlal Badwaik Case

In this case, the Supreme Court again faced the challenging question: "Should the presumption of legitimacy under Section 112 of the Indian Evidence Act, which assumes that a child born during a marriage is legitimate, prevail over scientific evidence provided by a DNA test excluding the husband as the biological father?"

Case background
In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik[16], the appellant challenged the paternity of a child for whom he was ordered to pay maintenance under Section 125 of the Criminal Procedure Code. He claimed he had no marital relationship with his wife after 1991, which contradicted her assertion that their daughter was conceived during their cohabitation in 1996. Despite initial court rulings in favor of maintenance, the Supreme Court ordered a DNA test, which conclusively excluded Nandlal as the biological father.

No finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten was recorded. Admittedly, the child had been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act on their own terms sought to conclusively prove that the child was the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggested that the appellant is not the biological father.

Decision of the Court
In its decision, the Supreme Court observed that Section 112 of the Evidence Act was enacted at a time when modern scientific advancements, including DNA testing, were not in the contemplation of the legislature. The Court acknowledged that DNA test results are scientifically accurate. While Section 112 establishes a presumption of conclusive proof upon satisfying certain conditions, this presumption is rebuttable. The Court noted that the presumption may provide a legitimate basis for reaching a legal conclusion; however, when the truth or fact is conclusively known, there is no need or room for any presumption. Where evidence to the contrary exists, the presumption must yield to this proof.

The Court emphasized that the interest of justice is best served by ascertaining the truth. Courts should rely on the best available scientific evidence rather than presumptions, except in cases where science has no answer to the facts in issue. In situations where there is a conflict between "conclusive proof" established under the law based on presumption and proof based on scientific advancements accepted globally, the latter must prevail over the former.

The Court clarified that Section 112 does not create a legal fiction but rather provides for a presumption of fact. Unlike legal fiction, which assumes the existence of a fact that may not exist, a presumption of fact depends on satisfying particular circumstances that logically lead to the presumed fact. The Court held that the husband's plea of lack of access to the wife when the child was conceived stands proven by the DNA test report. Given this scientific evidence, the Court ruled that it cannot compel the appellant to assume fatherhood of a child when the DNA report conclusively disproves paternity.

While the Court acknowledged the importance of not "bastardizing" an innocent child, as the marriage between the mother and father was valid at the time of birth, it concluded that it could not deny the truth considering the DNA evidence. The Court stated that "Truth must triumph" is the hallmark of justice, and thus the DNA evidence must be accepted over presumptive fatherhood under Section 112.

Conclusion
In conclusion, the Supreme Court has highlighted that, where conclusive scientific evidence is available, it should take precedence even over legal presumptions deemed "conclusive proof." The Court recognised that laws like Section 116 of the BSA, 2023, which were created without the foresight of modern scientific advancements, are intended to guide in the absence of definitive proof—not to negate factual truth. When scientific evidence, such as DNA results or other reliable advancements, conclusively establishes facts, justice demands that these should override presumptions.

However, a critical issue remains unresolved. The Supreme Court's decisions in Kamti Devi and Nandlal Badwaik reflect a divergence in the approach to reconciling legal presumptions with scientific evidence. Since both rulings were delivered by benches of equal strength, this has created a certain ambiguity in the prevailing legal position.

To provide clarity, it becomes essential that the Supreme Court decide this matter with a larger bench to establish a binding precedent as the law of the land. Furthermore, formal legislative measures incorporating scientific advancements and implementing recommendations from the 185th Law Commission report would mark a significant step forward in aligning legal frameworks with contemporary scientific realities.

Ultimately, the law must evolve to uphold both justice and truth. By harmonising legal principles with modern scientific capabilities, the judiciary and legislature can ensure that the legal system remains fair, equitable, and rooted in the realities of the present. Such changes would not only resolve existing ambiguities but also set a precedent for adopting technological advancements in the pursuit of justice.

End Notes:

1. S. 2(b) of the Bharatiya Sakshya Adhiniyam, 2023
2. PR Metrani v CIT, Bangalore, AIR 2007 SC 386
3. Dindayal v State, AIR 1956 All 520
4. Joseph Cullen Ayer, Marriage and Legitimacy, 16(1) HARVARD LAW REVIEW 22, 23 (1902)
5. Goutam Kundu v State of West Bengal, AIR 1993 SC 2295
6. Paravathi Ammal v S Madathi Ammal, AIR 2002 Mad 462
7. Presumption of Legitimacy of a Child Born in Wedlock, 33(2) HARVARD LAW REVIEW 306, 307 (1919)
8. Kamti Devi v. Poshi Ram, (2001) 5 SCC 311
9. Dukhtar Jahan v. Mohammed Farooq, (1987) 1 SCC 624
10. Diane S. Kaplan, Why Truth is Not a Defense in Paternity Actions, 10(1) TEXAS JOURNAL OF WOMEN AND THE LAW 69, 72 (2000)
11. Dipanwita Roy v. Ronobroto Roy, AIR 2015 SC 418
12. Chilukuri Venkateswaruli v Chilukuri Venkatanarayana, AIR 1954 SC 176
13. Goutam Kundu v State of West Bengal, AIR 1993 SC 2295
14. Kamti Devi v. Poshi Ram, (2001) 5 SCC 311
15. Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449
16. Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576