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LEGITIMACY OF A CHILD

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LEGITIMACY OF A CHILD
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    LEGITIMACY OF A CHILD INTRODUCTION The legitimacy of the birth of a child is having socio-legal overtones. The Social status of an offspring rests upon the legitimacy of its birth. In legal point of view, the determination of legitimate paternity is necessary to establish legal heir ship for various purposes It is covered under 112of the Evidence Act States that ³The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two.. In legal point of view, the determination of legitimate paternity is necessary to establish legal heir ship for various purposes. hundred and eighty days after its dissolution, the mother remaining unmarried ,shall be conclusive proof that he is 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.´ PURPOSE Section 112 is based on the principle that when a particular relationship, such as marriage, is shown to exist  , then its continuance must  prima facie  be presumed. Evidence that a child is born during wedlock is sufficient to establish its legitimacy and shifts the burden of proof to the party, seeking to establish its legitimacy and shifts the burden of proof to the party, seeking to establish the contrary. Maternity admits of positive proof, but paternity is a matter of inferences as maternity is a fact and paternity is a surmise. It can be said with certainty as to which women gave birth to particular individual but is it is impossible to say as to who was that man from the mother begot the child. The connection of child with his father may be ascertained by the subsisting facts. In India the law of succession depends upon the paternity. Even the surnames of children are also derived from the side of the father. There are only a few areas having maternal heritage. Besides solving the succession disputes, legitimacy also stands as a factor in the disputes between wife and husband, especially in divorce cases law always leans in favour of legitimacy and not in favour of bastardising the children. That is why a child born during the continuance of a valid wedlock is conclusively presumed to be legitimate son of that person to whom the mother is married. There is maxim  pater est quem nuptiae demonstrant (father is he who nuptials indicate).   For the purpose of drawing a conclusive presumption as to the legitimacy the following conditions have to satisfy: (1)   Child must be born during the subsistence of valid marriage. (2)   There must be continuance of a valid marriage if presumptions have to be made under sec 112. If the marriage is void or irregular or invalid presumption is not to be made under sec 112. (3)   Presumption under sec 112 must be drawn by all the courts, civil, criminal, and revenue governed by Evidence act. (4)   The provisions of sec 112 are as much applicable to the offspring ’s of a marriage between Hindu ’s , as it is to children of spouses professing other faiths including Mohammadan. (5)   The presumption as to paternity in sec 112 only arises in connection with offspring of a married couple. On the birth of a child during marriage the presumption of legitimacy is conclusive no matter how soon the birth occurs after marriage. (6)   If wife is having illicit connection with another person during continuance of a valid marriage and the child born during the continuance of valid marriage.   Section 112 deals with legitimacy of a child Section 112  –  birth during marriage, conclusive proof of legitimacy - 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. Principle lay in section 112  –  the section is based on principle that when a particular relationship, such as marriage, is shown to exits, then its continuance must be prima facie be presumed. Comments  –   The wordings of section 112 of Indian Evidence Act starts, stating, “ Birth during marriage, conclusive proof of legitimacy”  . Here the presumption is similar to that of the Latin maxim, ‘  pater est quem nuptiae demonstrant’, meaning he is the father whom marriage indicates. From ancient times it is the presumption that if the husband was within the four seas, at any time during the pregnancy of wife, the presumption was conclusive that her children were legitimate. Under this section, there is a conclusive presumption that a child born during the continuance of a valid marriage is a legitimate issue of parents, no matter, how soon the birth is, after the marriage. When we look into the reasoning behind this notion, the only reason which comes up, is that it is undesirable to enquire into the paternity of child whose mother and her husband, had between them, a subsisting marital status and had access to each other. The law presumes strongly in the favor of the legitimacy of the off-spring. The husband, who is strongly disputing the point of legitimacy of the child, can only rebut on the issue of access and no-access, otherwise the legitimacy, in every case, is deemed. The very objective of this section seems to be gender biased, from its commencement. And, to decide the conclusiveness, only on the basis of argument will not render the purpose of  judiciary in true sense. Moreover, there still lies an ambiguity in the contents of this section. Here the law states that if a child is born within 280 days, after dissolution of marriage, the legitimacy of that child is conclusive. Here, it seems that the law is a step ahead then the medical science, as the point regarding exact days of child birth, is not settled in medical arena, till date. It is basically an issue of medical science which has to be dealt with sincere scientific aptitude and by Laws of Nature. Deciding this issue, on the recourse of legal  arguments, is totally a faulty approach and the course, which we are following today, deliberately ends up in faulty conclusions. Basically, this section was formulated in year 1872, nearly 140 years ago. But, in last three decades, there is an unpredictable growth of scientific temperament. And, even the Legal Community is showing the impression of the same. The Courts readily admits the scientific evidences in case of theft, rape, murder and what not. But it is far beyond the reasonable understanding as why the issue of legitimacy is left open, to be decided by the legal interpretations and not by scientific techniques. Here, introduction and admission of DNA technology can actually be fruitful, to meet the ends of the justice. The development in DNA based studies is vast, complex and expanding on a monthly basis. In spite of repeated legal challenges, mainly in the USA, no two persons other than identical twins have been found to have identical DNA profiles, the possible number of presumptions far exceeding the population of the world. In paternity testing, DNA now allows positive determination of parenthood, rather than the statistical likelihood or exclusion offered by blood typing in former years. Further, there is one more recent technique whose probability of giving exact result is 99.9%. It is HLA testing. Blood group antigens, serum proteins, erythrocyte enzymes and salivary proteins are of importance in ascertaining the parentage with certainly and all of them are heritable characteristics, followed accepting genetic principles. When conventional blood group systems like ABO, Rh, MN, etc. are used in disputed parentage cases; the possibility of fixing the parentage cases, the possibility of fixing of HLA testing is used along with the conventional blood group systems in disputing parentage cases, the probability of fixing the parentage is about 99.9%.
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