Write a note on presumption as to legitimacy of child.

Presumptions
The term “presumption” refers to an affirmative or non-affirmative illation pertaining to a
doubtful fact or proposition and drawn by following a process of probable reasoning from
something substantive.
Section 4 of the Indian Evidence Act, 1872, enunciates the law of presumption. It defines “May
Presume”, “ Shall Presume” and “Conclusive Proof”
May Presume
Whenever it is required by this Act that the court may presume a fact, it may it may regard the
fact as proved until and unless it is disproved or may call for the proof of it.
Thus, wherever the words “may presume” have been used, the court has the discretion to
either make a rebuttable presumption or call for confirmatory evidence. It must be noted here
that the presumption so made is not conclusive or incapable of being rebutted.

Illustrations
The Court may presume –
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has
received the goods knowing them to be stolen, unless he can accounts for his possession.
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good
consideration.
(d) That a thing or state of things which has been shown to be in existence within a period
shorter than that within which such things or states of things usually cease to exist, is still in
existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;
(g) That evidence which could be and is not produced would, if produced, be unfavorable to the
person withholds it.
(h) That if a man refuses to answer a question which he is not compelled to answer by law, the
answer, if given would be unfavorable to him;
(i) That when a document creating and obligation is in the hands of the obligor, the obligation
has been discharged. But the Court shall also have regard to such facts as the following, in
considering whether such maxims do or do not apply to the particular case before it.

Shall Presume
Whenever it is directed by this Act ,that the court shall presume a fact, it shall regard the fact as
proved until it is disproved.
Unlike “may presume”, wherever the words “shall presume” have been used, the court has to
regard a fact as proved unless it is disproved. Thus, the court has to necessarily make a
rebuttable presumption regarding the existence or non-existence of a fact. For disproving a fact
so presumed or, in other words, rebutting a statutory presumption, the evidence has to be
clear and convincing. It must be such that, by judicial application of mind, it is established that
the real fact is not the one that has been presumed.

Conclusive Proof
When one fact is declared by this Act to be conclusive proof of another, the Court shall, on
proof of the one fact, regard the other as proved, and shall not allow evidence to be given for
the purpose of disproving it.” The section provides for non-rebuttable presumptions, that is,
presumptions which are conclusive in nature.

Section 4 deals with two types of presumptions. Presumptions of Fact and Presumptions of
Law. Presumptions fact is a natural presumptions based upon the human experience which are
always rebuttable. The court enjoys a discretion either to presume a fact as proved or may call
evidence to disprove it. May presume cases come under the natural presumptions.
Presumptions of Law or legal presumptions are based upon a systematic analysis of facts. Legal
presumptions are of two types, rebuttable and irrebutable. Rebuttable presumptions are those
where the courts shall presume as fact as proved until it is disproved. The court has no
discretion except to presume the fact, however can allow the evidence to disprove it.
Irrebuttable presumptions are those where the court shall presume the fact as proved on proof
of another fact and cannot call any evidence to disprove it. Ex: Sec. 40 Relevancy of Judgments,
Sec 112 Legitimacy of Children.
Introduction:
The law presumes that if a child is “born during the continuance of a valid marriage between his
mother and any man, or within two hundred and eighty (280) days after its dissolution, the
mother remaining unmarried, it is conclusive proof of its legitimacy unless it can be proven that
the parties to the marriage did not have any access to one another. The legislative spirit behind
this section seeks to establish that any child born during a valid marriage must be legitimate. The
law does not presume dishonourable or immoral actions unless conclusive proof can be produced
for the same. Therefore, section 112is based on the presumption of public morality and public
policy.

Section 112 of the Indian Evidence Act

Sec. 112 deals with the presumption of legitimacy of a child who is born during the valid
marriage if his mother and any man or within 280 days from the dissolution of the marriage. This
presumption is conclusive, and therefore, cannot be rebutted. But sec. 112 itself provides for one
ground to rebut the presumption of legitimacy under it. Thus, 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.

Thus, there are two requirements for the application of sec. 112.
1. The child should have born
(a) during valid marriage between its parents; or
(b) if the marriage was dissolved, within 280 days from dissolution of marriage
2. There should be no evidence to show non access between the parents at the time when the
child could have been begotten.

The burden of proof is therefore, entirely on the party challenging the legitimacy of the child and
not on the party asserting its legitimacy. As such, the party asserting legitimacy need not prove
access, the opposite side should prove non access.
In SPS Balasubramanayam vs Surattoyan, the court held that a marriage could be presumed
from the long cohabitation between a man and woman within the meaning for giving rise to this
presumption of conclusive proof.

Conclusive Proof
The presumption raised under section 112 of the Indian Evidence Act is the conclusive proof
under section 4 of the Indian Evidence act. When a fact is declared conclusive proof of another,
the court shall not allow further evidence to disprove the fact. This case generally occurs when it
is in the interest of society or against the government’s policy.

Access under Indian Evidence Act

The terms access and non-access refer to the existence and non-existence of opportunity for
sexual contact.
In other words: The term access used in section 112 of the Indian Evidence Act refers to the
existence of opportunity of marital intercourse. However, nonaccess can be established if it is
proved that the husband was physically incapable of procreating.

Is a DNA test admissible under section 112 of the Indian Evidence Act?
Generally, a DNA test is not permissible by the court in India as it results in the violation of the
right to privacy.
The Supreme Court in Goutam Kundu vs State of West Bengal has laid down the following
rules for blood test to prove paternity:
1. The courts in India cannot order for the blood test as a matter of course.
2. The application for blood tests cannot be entertained.
3. There must be a strong prima facie case that the husband should establish non-access to dispel
the presumption under section 112 of the Indian Evidence Act.
4. The court must examine the consequence of ordering a blood test, whether it will have the
effect of branding the child as a bastard and the mother as unchaste.
5. No one can be compelled to give blood samples for analysis.
Refusal of wife to comply with a DNA test.
In Dipanwita Roy vs Ronobroto Roy, the Supreme Court held that it would not be incorrect to
issue direction to the wife to undergo a DNA test to determine the parentage regarding the case
challenging her infidelity. And if the wife refuses to undergo the test of the child to determine
parentage, an adverse presumption can be drawn against the wife.

Explain the presumptions in Rape and dowry death cases.

Section 113B of Evidence Act
"Presumption as to dowry death" When the question is whether a person has committed the
dowry death of a woman and it is shown that soon before her death such woman had been
subjected by such person to cruelty or harassment for, or in connection with, any demand for
dowry, the Court shall presume that such person had caused the dowry death.
Explanation.- For the purposes of this section, "dowry death" shall have the same meaning as in
section 304B of the Indian Penal Code(45 of 1860).]
Section 114 of Evidence Act
"Court may presume existence of certain acts" The court may presume the existence of any fact
which it thinks likely to have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their relation to the facts of the
particular case.

Section 114-A
Section 114-A of the Indian Evidence Act lays down that there will be a presumption of absence
of consent in certain instances of rape cases. It says that if rape has been committed under any of
the clauses of sub-section (2) of Section 376 of the Indian Penal Code, and the woman states in
her evidence that she had not given consent, the court shall presume that the woman did not
consent.
History of Section 114-A
The Mathura Rape case was the reason behind the insertion of this section. The decision of the
Supreme Court, in this case, was widely ridiculed in the country. Thus, the government decided
to revamp the laws and it passed the Criminal Amendment Act, 1983. Let’s delve further into
this case.
Herein, a girl named Mathura fled with her boyfriend Ashoka. Her family registered a complaint
against her boyfriend. The girl, her boyfriend, her brother Gama and other relatives were called
to the police station to settle the matter. The investigation was completed and everybody was
asked to go back. But Mathura was asked to stay back. It was alleged that a police constable
Ganpat took Mathura to a chhapri and raped her. After he had satisfied his lust, another
policeman Tukaram came there and fondled her private parts. The case went to the Sessions
Court which held that the policemen were not guilty. They said that Mathura might have
invented the story. The High Court took a different stance on the case. It said that mere passive
surrender of the body would not amount to consent on the part of the plaintiff. The Court
commented that the overtures might have come from the policemen themselves and not from
Mathura. Further, on appeal, the Supreme Court overturned the decision of the High Court. It
held that she submitted her body to the policemen as she did not resist. The Hon’ble Court said
that the “onus is always on the prosecution to prove affirmatively each ingredient of the offence
it seeks to establish and such onus never shifts.” The judgment was criticized and there was an
uproar in the country. Gender-based violence came to the forefront and it was at that time Section
114-A was inserted in the Indian Evidence Act. It was substituted by the Amendment Act of
2013 and then recently by the Amendment Act of 2018.

Case laws
The courts have tried to define ‘consent’ and have also tried to explain that if there is evidence,
the presumption cannot negate that evidence outrightly. Let us discuss some important rape cases
to understand these concepts.

Rachna Singh v. NCT of Delhi, (2020)

This was a recent judgment by the Delhi High Court. Herein the accused of raping a woman was
acquitted by the Trial Court. Aggrieved by this decision of the Trial Court, the victim knocked at
the doors of the Delhi High Court saying that there is a presumption of guilt under Section 114-A
of the Indian Evidence Act. The High Court rejected this averment and said to prove the
presumption of guilt under Section 114-A one needs to first prove that there was sexual
intercourse. As the conduct of the woman was itself tainted in this act as she refused to undergo
an internal examination as well as she made a number of calls to the accused from time to time.
The Court held that as her conduct did not match her allegations, and no sexual intercourse could
be proved therefore the accused cannot be held guilty.

Mohd. Eqbal v. State of Jharkhand, (2013)

This was a gang rape case. A girl was forcibly kidnapped from the vegetable market and then
raped by two boys. The Court in this case held that there is a presumption as to the absence of
consent in case of gang rape as there can be no consent in such cases as no one would give
consent to two persons at the same time. Thus, specifically in gang rape cases, no consent can be
presumed and Section 114-A would directly apply.

State of Rajasthan v. Roshan Khan, (1947)

This case is a good example of ‘presumption of guilt’ under this Section. In this case, a girl was
kidnapped by six boys and then was raped. She said that she did not consent to sexual
intercourse. As the sexual intercourse was proved in this case, the Court applied the presumption
of guilt factor and the boys were jailed.