Section 112 IEA, And The DNA Test: Dissecting The Law

Section 112 of Indian Evidence Act, 1872, which provides for legitimacy of the child born out of a valid marriage, has been the centre of debate for the last several years. Further, if a person declines to comply with the directions issued by court, a presumption of the nature contemplated in Section 114 illustration of the Act could be taken, which provides: That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; The journey through case laws would suggest that in the cases where the application filed on behalf of the child or his/her mother, the court has allowed the application, but not as a matter of right, but if it finds it to be in the interest of the child, as Section 112 of the Act bars disproof, not the further proof of legitimacy. DNA Report's Prevalence over Conclusive proof The Apex court in Nandlal WasudeoBadwaik vs Lata Nandlal Badwaik &Anr16 while facing the question of DNA Report being available on record and no objections being taken as to the establishment of prima facie case for non-access at the time when direction for DNA Test was called for, held that in such a situation the DNA test will prevail over the presumption of Conclusive proof under Section 112 of the Act. For ordering a second DNA Test, the High Court of Madras has laid down certain guidelines listed below: The Courts cannot compel the parties to undergo DNA test for the second time; The first DNA test cannot be treated as doubtful or set aside merely on the basis of bald and vague allegations made by the party against whom the result of the said test was declared; When already a DNA test report is available, there is no need to order second DNA test unless it is proved by the party who raised objections that it has been exposed to a reasonable degree of suspicion and the said report has been obtained by influencing the Expert who gave the report; Direction to conduct DNA test more than once cannot be granted since it would lead to unhealthy practice where the parties repeatedly seek to send the sample till they get a favourable report and different reports may also lead to confusion; DNA test report is only a piece of evidence in determining the paternity of a child, but it is to be noted that the said report is to be analysed along with the facts and other evidence to be adduced by the parties in support of their case. Legislative Response to present anatomy of Section 112 IEA, 1872 The Indian Evidence Bill,200329 based on Law Commission's 185th report, while keeping the degree of presumption under Section 112 of the Act intact, has recommended the inclusion of the DNA test and a blood test, conducted with the consent of the parties and in case of a child with the permission of the court, as a legitimate means to negate the presumption under Section 112 of the Act.