Section 116 In The DNA Era: Protection Of Legitimacy Or Forced Fatherhood?

Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as the BSA), corresponding to Section 112 of the Indian Evidence Act, 1872, provides that a child born during the continuance of a valid marriage between spouses, or within 280 days after its dissolution, shall be conclusive proof of legitimacy. By creating this conclusive presumption, the husband is effectively barred from producing any evidence to rebut the legitimacy of the child. The only defence available is to establish non-access between the spouses at the time when the child could have been conceived.

The underlying rationale of this provision is to protect children from being branded as illegitimate and to shield women from the stigma of being labelled unchaste.

When the provision was enacted, scientific techniques to determine paternity were not available. The lawmakers deliberately preferred social stability over biological certainty. However, with the advent of advanced Deoxyribonucleic Acid (DNA) technology, it is now possible to determine paternity and maternity with near certainty. The continued rigid application of this conclusive presumption raises serious concerns relating to fairness, justice, equality, and constitutional balance.

The Indian judiciary has consistently guarded the sanctity of this presumption. In Gautam Kundu v. State of West Bengal (1993) 3 SCC 418, the Supreme Court held that DNA tests cannot be routinely ordered in disputes concerning legitimacy, observing that such tests would jeopardise the status of children and the dignity of women. The Court emphasised that the presumption under the provision can only be displaced by strong evidence of non-access.

Similarly, in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023 INSC 146), the Court reiterated that DNA tests should not be mechanically directed, as they amount to an intrusion into the privacy of the child. These decisions reflect a clear judicial preference for preserving social legitimacy over uncovering biological truth.

At the same time, the Supreme Court has acknowledged the evidentiary reliability of DNA technology. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC 576, the Court held that proof based on scientifically accepted techniques must prevail over proof founded on presumptions. The Court observed that truth must triumph in the administration of justice. This judgment marked a significant shift by recognising that legal fictions cannot always override scientific certainty. However, this progressive approach has been diluted in subsequent rulings.

While interpreting the provision, the judiciary has consistently focused on protecting the rights of children and the dignity of women, but has rarely addressed the concerns of men. Once the presumption operates, the husband becomes legally obligated to maintain the child under personal laws as well as under Section 125 of the Code of Criminal Procedure. This liability continues even in situations where circumstances strongly suggest that the child may not be biologically his.

In essence, the law enforces what may be termed forced fatherhood — compelling a man to bear lifelong financial and emotional responsibility for a child to whom he may have no biological connection. Protecting children is undoubtedly essential and a recognised legal mandate, but justice cannot be achieved by shifting the consequences of another's conduct onto an unwilling individual.

A serious contradiction arises when courts permit DNA testing to establish adultery as a ground for divorce but refuse similar testing when a husband challenges the legitimacy of a child to avoid maintenance liability.

In Dipanwita Roy v. Ronobroto Roy (AIR 2015 SC 418), the Supreme Court allowed DNA testing when the husband alleged that his wife had conceived through an adulterous relationship. Several High Courts have also permitted DNA tests to prove infidelity in matrimonial disputes.

This approach is inherently inconsistent and illogical. If DNA tests are allowed to establish that conception resulted from an extramarital relationship, it necessarily undermines the presumption that the husband is the biological father. It is practically impossible to examine adultery without touching upon the issue of paternity. By permitting scientific evidence for one purpose while preserving legal fiction for another, courts dilute the very foundation of the presumption.

Thus, the provision operates on a selective model of protection — safeguarding children and women while leaving husbands without an effective remedy.

This imbalance raises serious constitutional concerns. Forcing a man to maintain a child who may not be his interferes with his dignity and personal liberty under Article 21 of the Constitution. Moreover, denying him the opportunity to rebut paternity while granting absolute protection to others creates an arbitrary legal framework contrary to Article 14.

The contradiction surrounding this presumption calls for a coherent legal approach. One option is to strictly adhere to the presumption by refusing DNA testing in all circumstances, including adultery claims, thereby preserving the original legislative objective of protecting legitimacy at any cost.

The alternative, and arguably more just approach, is to permit rebuttal of the presumption through reliable scientific evidence. If courts increasingly rely on DNA technology to uncover truth in matrimonial disputes, fairness demands that husbands be allowed to challenge forced paternity through the same means.

The need for reform was recognised by the Law Commission of India in its 185^th Report, which recommended expanding the scope of the provision to expressly include medical and DNA tests as grounds for rebuttal. However, this recommendation was never implemented, even with the enactment of new criminal laws.

The presumption was created in an era when scientific certainty was beyond the contemplation of lawmakers. While its protective purpose remains relevant, its rigid application in the age of DNA technology has resulted in serious injustice. The judiciary's inconsistent approach — embracing science to prove adultery while clinging to legal fiction for legitimacy — has weakened the coherence of the law.

True justice requires either fully preserving the presumption by excluding scientific evidence altogether or modernising the provision to allow science-based rebuttal in all cases. Until then, the law will continue to function as a shield for children and women, and simultaneously as an instrument imposing unfair liability on men, raising profound constitutional and ethical concerns.

The author is a Law Student at Central University of Kashmir. Views are personal