Report No. 69

Chapter 54

Presumption of Legitimacy

Section 112

I. Introductory

54.1. Introductory.-

What is commonly called the presumption of legitimacy is dealt with in section 112. The section provides that 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. The principal object of the section is to prevent paternity and legitimacy from being disputed except to the extent specified in the section.

54.2. Concept of legitimacy.-

The concept of legitimacy1 and the distinction between legitimate and illegitimate children have a place in family law in most legal systems. The ancient Greeks had elaborated the distinction by rules relating to inheritances.2 Roman Law added its contribution of patria potestas and the notion of family. In Western European systems today a legitimate child, being a member of a family, gets his father's name and rights of aliment, parental care and succession. At common law he takes by inheritance and succession those things that are gained by inheritance or successio.- the father's surnam.- a right, in the case of an eldest son or coparcener daughters, to take real property as heir before heirship was abolishe.- a right to succeed as next of kin upon intestacy.

An illegitimate child, or bastard, does not share in this. He gets his surname not by inheritance, but by repute. Modern systems differ in their requirements of legitimacy.3 In France today, the law is no longer as Pothier stated it; for by the Civil Code, Article 331, a formal legal recognition of the children by the parents is required, either before or at the marriage ceremony. In some states of the United States of America, some form of ancillary registration is a condition of legitimation by subsequent marriage. And, in Australia, registration has been required by some of the State statutes. On the other hand, under the German Code of 1900, and in some other systems, subsequent marriage automatically effects legitimation. Paternity is then simply a basic fact. If questioned, it must be independently established.

1. A.G. Victoria v. Commonwealth, (1962-63) 36 ALJR 104 (123).

2. See Potter Antiquities of Grees, pp. 655-659.

3. A.G. Victoria v. Commonwealth, (1962-63) 36 ALJR 104 (127).

54.3. In canonical jurisprudence the purpose of the doctrine was to encourage the parents to enter into matrimony for their own spiritual welfare. Its method was to deem a marriage to have taken place before the birth of the legitimate child. Its essential condition was the capacity of the parents to have married at that date.1

It can be said, as Lord Phillimore once observed2 that "it is a possible jural conception that a child may be legitimate though its parents were not and could not be lawfully married. This principle was admitted by the canon law which governed western continental Europe till about a century ago."

1. A.G. Victoria v. Commonwealth, (1962-63) 36 ALJR 104 (128).

2. Khoe How. Leong v. Khoo Hean Kwee, 1926 AC 529 (544), quoted in A.G. Victoria v. Commonwealth, (1962-1963) 36 ALJR 104 (130).

54.4. Jurisprudence of birth during marriage.-

So much as regards the concept of legitimacy, and some of the probable approaches thereto. Section 112 adopts one of the possible approaches by treating as legitimate a child born during a valid marriage. The date of birth is the crucial date, to start with. The date of conception is irrelevant. However, this position can be displaced if absence of access is proved. For the purpose of proving absence of access, the possible period of conception becomes relevant. In a consideration of the section, it is important to bear in mind two moments of time which are allotted by the section for two different purposes. The first moment of time is that relating to birth. In this regard, the section provides that it must have taken place during the continuance of a valid marriage.

The second moment of time which is important for the purposes of the section is to be found in the latter half, where it is permissible to show that the parties had no access to each other at any time when the child could have been begotten. Here we are taken to the moment of conception. Therefore, while as a matter of law in order to confer legitimacy, it is enough if birth takes place during the continuance of a valid marriage, as a matter of evidence, it is also important to note the moment or possible period of conception. The section would then emerge in two of its important aspect.- (i) the section operating as a rule practically of substantive law, and (ii) the section operating as, or dealing with, a rule of evidence.

As a rule of substantive law, the section is important inasmuch as conception before the marriage of the parents becomes immaterial to the legitimacy of the child, if the parties are married subsequently. We describe this as a rule of substantive law, because it deals with the status of legitimacy and because in regard to that matter it is the principal provision of Indian statute law. Moreover, in this respect, the section departs from the Hindu law, as will be explained later.

54.5. It should be noted that the presumption under section 112 can be rebutted only by proof of non-access. For the purpose of the section, "Access" does not mean1 actual marital intercourse. Opportunity for intercourse is enough, according to the law enumerated by the Privy Council which has been reiterated by the Supreme Court.2 In Bhagwan Buksh3the relevance of such evidence was assumed by the Privy Council.

1. Karapaya v. Maraudi, 1934 ILR 12 Rang 243 (PC).

2. C. Venkateswarlu v. C. Venkattanarayanan, AIR 1954 SC 176: 1954 SCR 424.

3. Bhagwan Buksh v. Mahesh Buksh, AIR 1935 PC 199.

54.6. Meaning of "continuance".-

Birth must have taken place while the marriage continued. In England, the presumption does not apply where the husband and wife have been separated by judicial order. But it does apply where there is a maintenance order against the husband or where the parties are living apart under a separation agreement or a decree nisi of divorce has been pronounced.1

In India, such matters would have to be decided on an interpretation of the word "continuance" of the marriage in the section and-where such evidence can be adduced-also on a consideration of evidence of non-access.

1. (a) Bowen v. Norman, (1938) 2 All ER 776. (b) Ettenfield v. Ettenfield, (1940) 1 All ER 29.

54.7. Birth soon after marriage.-

The critical moment is birth. For the application of the section, it is immaterial that the parties were not married at the time of conception. The presumption of legitimacy at Common Law applies even in the case of a child born to a woman so shortly after marriage that it must have been conceived before the marriage took place.1 This is also the position in Australia,2 and under section 112 of the Act, in India. In this respect, the so-called "presumption" really amounts to much more than a mere evidentiary rule. It deals with a topic of family law-the boundaries of legitimacy.

1. Poutett Peerage case, 1903 AC 395 (HL).

2. Cox v. funcken, 1947 Commonwealth LR 277.s

54.8. Russell v. Russell.-

The rule of English Common Law (Russell v. Russell) under which the husband or wife was not permitted to give evidence of non-access after marriage to bastardize a child born during lawful wedlock does not apply in India. In England also, the rule was abrogated by statute in 1949, and the relevant provision has been successively re-enacted in legislation relating to matrimonial causes.1

1. Section 48(1), Matrimonial Causes Act, 1973.

54.9. Recent developments as justifying a detailed examination of the section.-

At this stage, we would like to point out that since the section was enacted, matrimonial law in India has developed in several directions, adding to its richness and content, and several of our notions as to various legal aspects of the married status have been clarified-for example, as to void marriages. Apart from this purely legal aspect, notice must also be taken of certain scientific developments1 which make it possible to give fairly cogent, even if negative, proof of paternity-proof which was not so well-known at the time when the section was enacted.

Due account will also have to be taken of the fact that the statutory law of marriage as it was in the last century and the statutory law of marriage as it now stands are poles apart from each other, at least as regards Hindus. It would, therefore, be appropriate if the section is examined in the light of these developments. We are making these prefatory observations in order to indicate why the section has been considered in some detail in the discussion that follows.

1. See Blood Group Evidence, infra.

54.10. Potency how far relevant.-

At the outset, we would like to mention one aspect which, though it has not been the subject of direct judicial authority, may become important. The presumption under section 112 can be rebutted only by proof of non-access. It is well recognised that, for the purpose of invoking the presumption under this section, all that is required to be proved initially is birth during the specified period. The section postulates the potency of the husband, and, therefore, enables the presumption of legitimacy to be drawn from the mere proof of birth, as stated above. The position would, of course, be different and the presumption under the section may not arise if the assumption of potency is successfully challenged.

54.11. Sterilisation.-

In this connection, we may incidentally observe that the question may arise whether the presumption arising under this section would not be excluded if it is shown that the husband has sterilised himself.

54.12. The question to be considered would be the meaning of access. It appears to us that, if such a question arises, courts will have to decide in the first instance as to whether the sterilisation of the husband alleged is proved and whether it is shown to the satisfaction of the court that such sterilisation was properly carried out, so that, in the light of the medical opinion, the husband is to be regarded as incapable of procreating. In such a case, the courts may have to ask themselves whether there is sufficient proof of "non-access" in the legal sense. Access implies procreative capacity and opportunity for sexual intercourse. The question we do not express any opinion or refer to this problem incidentally at this stage.

II Two Stages

54.13. Two stages.-

Reverting to the present section, it is useful to remember that the section applies to-

(a) birth during the continuance of a valid marriage, and

(b) birth within two hundred and eighty days after dissolution of such marriage, provided the mother remains unmarried.1

This is stating the obvious, but this analysis becomes crucial for a consideration of several points. As to the first stage, we shall have a few comments to make on the meaning of 'valid marriage'. As to the second stage also, there are a few points which will require consideration. We need not go into decided cases dealing with birth that takes place more than two hundred and eighty days after termination of marriage-a situation which is outside the section. Though several reported decisions relate to this situation, the question that arises is essentially one on which precise and universally applicable presumptions cannot be framed.

1. The aspect of rebuttal will be considered later.

54.14. As to the two stages mentioned above, the section really provides for the "conclusive" proof of two elements, if a valid marriage is proved namely-

(a) that the person concerned is the "son" of the husband, and

(b) that the person is the "legitimate son" of the husband.

It thus provides for-

(i) paternity, and (ii) legitimacy. The latter touches on substantive law,1 though couched as a presumption.

1. See Criterion of Legitimacy, infra.

54.15. Rebuttal.-

The presumption is rebuttable by evidence of non-access throughout the possible period of conception. Of these two stages of presumption, the first we shall reserve for later discussion,1 and we proceed to consider the second.

1. See discussion as to rebuttal, infra.

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