Legitimacy of a Child Question | IP was the wife of X. Two months after the death of X, she remarries Y. Five months after the marriage, a son Z is born to P. Who is legally the father of Z?

Question: Legitimacy of a Child Question | IP was the wife of X. Two months after the death of X, she remarries Y. Five months after the marriage, a son Z is born to P. Who is legally the father of Z? Answer referring to the relevant provisions of the Evidence Act. [U.P.H.J.S. 2009]

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Answer

Section 112 of the Evidence Act raises a conclusive presumption about the paternity of a child born during the subsistence of a valid marriage.

This section, which is based on the maxim pater est quem nuptiae demonstrant (father is he whom the nuptials indicate), create, in favour of a child both born during the continuance of a valid marriage between his mother and the alleged father, a conclusive presumption of legitimacy, in the absence of evidence of non-access between the parents.

The provision is derived from the English rule of law, that the child born in wedlock should be treated as the child of the man who was then the husband of the mother unless it is shown that he had no access to the mother at the time of conception.

The present case relates to the facts of the case in Palani alias Thirumeni Thevan v. Sethu [ILR (1925) 49 Mad 523]:

A Hindu woman was married to S in Oct. 1903. She was divorced by him in June 1904. She married another man, T, in July 1904 and gave birth to a son in Sept., the same year. Thus, the conception was formed when she was the wife of one and birth took place when she was the wife of another man.

The child was held to be the legitimate child of the second husband, the court relying upon the fact that no proof was available of the fact that T could not have had access to her even when she was the wife of S. The marriage of the mother to one person is not considered to be a proof of the lack of access to any other person.

Thus, the presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law, in general, presuming against vice and immorality.

It is a rebuttable presumption of law that a child born during lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of the evidence, and not by a mere balance of probabilities.

So, applying the conditions of section and reasoning of the Palani Sethu case in the present case at hand, where IP’ was the wife of ‘X’. Two months after the death of ‘X’, she remarries 'Y’. Five months after the marriage, a son 'Z’ is born to 'P’. Y is legally the father of 'Z’ by virtue of section 112, the Indian Evidence Act. And if Y wants to prove the contrary, he must prove he had no access to IP when the child was conceived. So, the said conclusiveness of presumption to the legitimacy of a child can be avoided if it can be shown that the parties had no access to each other at the time when the child could have been begotten.

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Important Mains Questions Series for Judiciary, APO & University Exams

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