Section 112 of the Indian Evidence ACt provides for a irrebutable presumption of law i.e an arbitrary inference that law mandates the court to draw - and not allowed to be rebutted by contrary proof howsoever strong.
S.112 says that when a child is born during the continuance of a lawful marriage of his mother and a man - or within 280 days of its dissolution - it shall be conclusive proof that the man is the father of the child. Meaning thereby birth during marriage - is conclusive proof of paternity. This presumption can only be averted by negative evidences of non access i.e if the man can prove that he could not have had effective s*xual intercourse with the lady when the child could have been begotten.
The Courts apparently have given it a liberal interpretation to prevent baztardization - and have shown that laws leans in favour of legitimacy. In this regard judgments like Banarsi Das v. Teeku Dutta (2005), Gautam Kundu (1992), and the latest - Bhuboni vs Secy, Orissia State Women's Commission (2010). Courts have accepted that maternity admits of positive proof but paternity is a matter of inference, and this inference we'd have to make to serve a social purpose i.e prevent children from being rendered illegitimate/destitute.
However - while working for our organisation I did came across a case where - a Man in an arranged marriage got a child through his wife 4 months into the marriage, the union being an arranged one. Even when his petition for annulment was pending. In collateral maintenance proceedings - he could not prove non access - (negative evidences are very hard to lead) and he was branded as the father.
Does the law need a re-look ?
