conclusive proof of legitimacy sn 112 of indian evidence act 1872

conclusive proof of legitimacy 

when we talk about the legitimacy of children during marriage so section 112 of evidence act provided birth during marriage conclusive proof of  legitimacy   being the rule of the nature there is no problem deciding maternity of person but in case of determining paternity cognet evidence is required section 112 of indian evidence act deals with the presumption of legitimay of children with regard to conclusive proof of legitmacy not regard to illagitimcay .Section 112 of indian evidence act reproduce the rule of english law  that is udesirable to inquire into paternity of child when mother is married women and husband access to her . Ghulam -mhy-ud-din vs khizar hussain air 1928 in this case it was held that if father died and child born within 280 days of marriage so that child should be treated legitimate child of that person .

   

Birth during marrige section 112 of evidence act 

The fact that any person was born during the continuance of valid marriage between his motther and any man , or within 280 days after its dissolution , the mother remaining unmarried , shall be conclusive proof that he is the legitimate son pf 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 .

  

there has another case shyam lal vs sanjeev kumar and others 2009 in this case supreme court held that according to the legislative intention and spirit behind section 112 of the act it is abundantly clear that once the validity of marrige is proved then there is storng presumption about the legitimacy of children born out of the wedlock . the presumption can only be rebutted by strong , clear satisfying and conclusive evidence . The presumption can not be displaced by mere balance of probabilities or any circumstances creating doubt .

under section 112 of the act the court has to confine itself to determining if there was '' lack of access "to either spouse . the legislative intent behind this provision is directed toward safegaurding the interest of the child and protecting it from being bastardized in the event his paternity is in question. 

ROHIT SHEKHAR VS NARAYAN DUTT TIWARI AND OTHERS AIR 2010 DELHI HIGH COURT in this case court held that the entire focus of attention and legislative concern in enacting section 112 with a near impregnable presumption of legitimacy was premised on the welfare or best interest of a child and society's assurance that a child born to woman after the marriage , should not except under limited circumstances be exposed to any inquiry about who was his/her true father this overarching concern  also was aimed at protecting a woman from allegation of unchastity and resultant harassment

that she could be subjected to the legal proceeding 

while those concern are real as today as they were when this provision enacted , nevertheless subsequent change in woman's status's    the right enjoyed by them , scientific development and advanced technology change in legal provision which recognizes a child's right to know its biological antecedent can not be ignored  

so after the above discussion and after the light on above case laws here we can say that if a child born during the marriage within two eighty days if there has been any access between spouse or not that child should be considered the legitimate child of that person .