Section 112 of the Evidence Act - A critical analysis
Section 112 of the Evidence Act – A critical analysis.

This paper is an effort to focus primarily on two things. One is that DNA testing should be allowed when there was access between both parties, and still, one party wants to dispute paternity. And the other one is that section 112 shouldn’t be considered as conclusive proof but should be covered under “may presume” under section 4 of the Indian Evidence Act, 1872.

This paper also seeks to show that it’s time to amend this law because it’s outdated, doesn’t treat the parties fairly, and violates the rules of natural justice. It’s necessary for the legislatures to consider this law for amendment as times have changed now and it isn’t like earlier when both women and children were not given any importance or respect.

Presumption as to the Legitimacy of a Child Under Section 112 of the Indian Evidence Act

Section 112 of the Indian Evidence Act addresses the legitimacy of a child born out of wedlock. According to the law, it is presumed that:

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“Any person born during the continuance of a valid marriage between his/her mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child 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.”

The main intention behind this section is to give legitimacy to the child born out of a valid marriage. The section is based on public morality and public policy. This means the law doesn’t presume any dishonourable behaviour and demands conclusive proof to prove the same.

Must Read: Legitimacy of a Child Under the Indian Evidence Act With Case Laws

“Conclusive Proof” Under Section 4 of the Indian Evidence Act

Section 4 of the Indian Evidence Act defines three degrees of presumption: “may presume”, “shall presume”, and “conclusive proof.”

Thus, section 4 should be read with section 112, as section 112 talks about “conclusive proof.” Then, further, if the given two conditions are satisfied, it shall be considered as conclusive proof of legitimacy, which prevents the use of additional evidence to refute such a fact.

With the exception of “non-access”, the child will be considered legitimate, causing serious difficulties for the party questioning the child’s paternity. This goes on to show that the section is founded on the presumption of morality, and in certain circumstances, it unjustly holds the disputing party accountable. The child’s legitimacy cannot be disproved unless non-access is proven. Non-access is very tough to prove for the party disputing paternity, and they face many problems. The basis of this section is very clearly laid out on morality, which may, in various circumstances, hold the disputing party unjustly accountable. We are aware that the legitimacy of a child is crucial in matters of custody, maintenance, etc., so the limited exception which is provided by this section deals with the issue of legitimacy very narrowly and thus makes this section impractical as of now.

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In my opinion, section 112 of the Evidence Act should not be included under conclusive proof but rather under may presume, which means that the court should consider assuming certain things after thoroughly analysing the facts and evidence. This proves that no one has been treated unfairly and that there is no inequality because one side has an advantage over the other under conclusive proof.

Exception of “Non-Access”

It is evident that section 112 of the Indian Evidence Act provides for a very narrow exception to the presumption of legitimacy. It is that a legitimate marriage may not constitute conclusive proof if it is proved that there was “no access” among the parties to the marriage at the time of conception. Furthermore, this must be proved beyond a reasonable doubt, not only on the balance of probabilities.

The objective of the law is to impart justice fairly and efficiently. As stated above, the section is based upon the presupposition of moral behaviour, with ethical principles acting as the basis for the law. This defeats the law’s primary objective itself, as the contending parties in various cases are held unjustly accountable.

The exception of non-access has highly restrictive and limited applicability. For instance, if two people are getting a divorce and the husband is unable to demonstrate that there was no access between the parties and the child is actually not his, section 4 will presume that the child belongs to the father and force him to pay for the child’s expenses, which is unfair to the husband.

Separation of Law and Morality

The moral ideas of a particular time period may be reflected in the law, but they can never become the primary basis for the law. To understand more, the law is the well-laid system of rules and sanctions through which societies are uniformly regulated. On the other hand, morality is a subjective concept, a personal sense of what is “good” and “bad,” varying from person to person.

Some may contend that the purpose of the law is to protect the “good” and punish the “bad”. However, this is a very limited interpretation. The law does, on occasion, protect the good and punish the bad, but it is impossible to categorize “good” and “bad” as it is highly subjective. What is beneficial for some might be damaging to others.

Let’s take the example of homosexuality to understand this. Some people still consider homosexuality immoral. Still, the law has provided sexual orientation as an individual right, and thus morality cannot be permitted to trump anyone’s rights.

Similarly, we see in section 112 of the Act that the right to a fair trial is denied to the challenging party, as they are not allowed to produce various pieces of evidence to contest paternity. This goes on to show that the moral principles outweigh the judicial sense of fairness in section 112 of the Indian Evidence Act, and thus the section must be amended.

“Social morality cannot violate the rights of even one individual.” Justice Ajay Manikrao Khanwalikar, Honourable Supreme Court of India

DNA Testing to Ascertain Paternity

The invention of DNA testing technology has drawn much criticism since it appears to breach two crucial constitutional rights: Article 20(3), which deals with the right against self-incrimination, and Article 21, which deals with the right to privacy and personal liberty. Nevertheless, DNA tests are considered conclusive evidence in the Indian legal system and are admissible.

Article 21: Right to Privacy

In the case of Govind Singh vs the State of Madhya Pradesh, the Supreme Court decided that constitutionally protected fundamental rights are subject to limitations and might be coerced in the public interest. This means that the right to privacy and personal liberty, which is protected by Article 21 of the Indian Constitution, is not an absolute right. Instead, it is based on the Supreme Court’s upholding of the validity of legislation affecting the right to life and personal liberty, which includes a medical examination.

Article 20(3): Right Against Self-Incrimination

The Supreme Court held that:

“Self-incrimination means conveying information based upon personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which do not contain any statement of the accused based on his personal knowledge.”

As a result, medical testing is a mechanical procedure that entails providing blood and disclosing any personal information. As a result, it does not contravene Article 20(3).

Loopholes in Section 112 of the Indian Evidence Act

Establishing paternity is crucial in both civil and criminal law. The legitimacy of a child born within a lawful marriage is presumed to be conclusive under the law. There is just one exception to this section, and that is the parties’ inability to communicate with one another.

The term “no access” refers to the fact that neither party has the option or opportunity to engage in sexual activity. This poses a significant challenge in circumstances when paternity is disputed despite the fact that both parties had access to each other, such as in adultery cases.

Because of the level of decisive proof, parties attempting to establish paternity in a genuine case will be unable to do so due to a lack of evidence. The non-access exemption provided for this section is insufficient to address all of the various scenarios that may occur under section 112. As a result, this law is outdated and is founded on morality that has no current relevance.

Section 112 of the Indian Evidence Act, which was enacted in, has never been altered or changed. There was no or very little understanding of the existence of scientific procedures at the time the Act was passed, and DNA testing had not yet been found. Not only that, but legislators at the time had no idea that such scientific procedures as DNA testing would exist. As a result, section 112 was legal at the time since women’s position was believed to be very low. Therefore, this section preserved women’s respect and dignity while also ensuring that genuine children were not harmed or labelled as “bastards.” However, times have changed since then, science and morals have advanced by leaps and bounds, and section 112 should no longer be acceptable in today’s world. As a result, this section must be amended to reflect the current scenario.

The rule prohibiting DNA tests in the case of a legitimate marriage has been widely criticised. However, before criticising this regulation, one must consider if the court may require either of the parties to undergo a DNA test. The court’s chain of rulings below can be used to track the question that led to this answer.

Gautam Kundu vs State of West Bengal (1993)

In the case of Gautam Kundu vs State of West Bengal, the Supreme Court held that:

  • Blood tests cannot be ordered by the court as a matter of course.
  • The husband must establish the exception of no access between the parties to disprove section 112’s presumption.
  • Before deciding whether to order the blood test, the court should consider the possible consequences and whether they would have an impact on the mother and the child.

Sharda vs Dharmpal (2003)

A three-judge bench of the Supreme Court ruled in Sharda vs Dharmpal that:

  • The family court has the power to order anyone to undergo medical tests.
  • Only when there is a prima facie case, and sufficient evidence is available to the court, it can exercise this power.
  • The Indian Constitution’s Article 21 guarantees everyone the right to life and personal liberty, and the court’s order to submit to such tests will not infringe on that right.

The Supreme Court further declared that if the respondent does not submit to the medical examination, notwithstanding the court’s order, the court has the power to draw an unfavourable inference against him.

As a result, the court presently has complete authority over determining who must undergo medical examinations and under what circumstances. Nonetheless, the court can only grant permission if the non-access between the parties is shown under section 112 of the Indian Evidence Act. The moral propelling force behind this section is no longer valid in today’s modern day, as evidenced by the aforementioned case judgement, Gautam Kundu vs the State of West Bengal.


To summarise, there is undoubtedly a legal vacuum that leaves many individuals in difficult situations unsure of how to proceed. DNA testing has not been authorised till recently in circumstances when both parties have access to each other, but one wishes to question paternity. Because of the exemption under this rule and the requirement for conclusive proof, DNA testing has been prohibited.

This legislation was enacted during a period when society was unkind to women and children, but with advances in social morals and science, this part should no longer be considered valid.

In practice, today’s legislation is more unjust and restrictive than protective. This law should be changed to offer redress and relief in circumstances where the parties have access to each other, and there is a valid disagreement about paternity that may be resolved by medical testing.

But, while there hasn’t been any significant progress, there has been some, and credit for this should go to the Law Commission of India, which worked to propose amendments to section 112 of the Indian Evidence Act (Amendment) Bill, 2003. The bill proposes to broaden the scope of exceptions under section 112 to include medical tests to establish paternity in the disputed party’s best interests.

It also outlines specific procedures and guidelines to be followed to assure the test participants’ safety and that the test is carried out scientifically and safely. It further stipulates that if the man refuses to submit to such medical testing, he will have to waive his right to defend himself against any allegation of parenthood made against him. This is a much-needed and critical change that should be adopted as soon as possible to address and close the gap while maintaining the spirit of protectionism for which the law was originally intended. But unfortunately, this law has not yet been enacted or debated by the legislature. As a result, this rule still remains, protecting the kid from being tainted if the child’s mother and father were in a legitimate and lawful marriage and living together at the time of conception.

The case of Vasu vs Santha (1975) was mentioned in the discussion of amending section 112 of the Indian Evidence Act. The court, not the legislature, may only amend the correctness of the law, and the court can’t draw any conclusions from the facts that aren’t required by the law, according to the ruling. The following are some of the observations made:

“The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case. These rigours are justified by consideration of public policy, for there are a variety of reasons why a child’s status is not to be trifled with. The stigma of illegitimacy is very severe, and we do not have any protective legislation in England to protect illegitimate children. No doubt, this may, in some cases, require a husband to maintain children of whom he is probably not the father. But, the legislature alone can change the rigour of the law and not the court. The court cannot base a conclusion on evidence different from that required by the law or decide on a balance of probability what will be the result if blood test evidence is accepted.” Source: GV Mahesh Nath LL.M, Civil Judge, AP Judcial Services

Read Next:
1. Live-In Relationship in India – Is It Allowed by Law?
2. Why Marital Rape Should Be Criminalised and Why It Shouldn’t
3. Amendment to Increase the Legal Age of Marriage for Women in India

Gayatri Singh
WritingLaw » Law Articles » Loopholes in Section 112 of the Indian Evidence Act, 1872 Law Study Material
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