Presumption as to Legitimacy — Birth During Marriage as Conclusive Proof (s. 116) — BSA (Law of Evidence) Notes

Presumption as to Legitimacy — Birth During Marriage as Conclusive Proof (s. 116)

The law has always been reluctant to brand a child a bastard. For centuries the presumption of legitimacy was so strong that English judges called it the presumption that could be rebutted only “by the four seas” — meaning, once, that only the husband’s absence beyond the seas could displace it. Modern law is a little more flexible, but the instinct survives: a child born inside a marriage is the husband’s child, and the law will not lightly listen to anyone — least of all a father seeking to escape maintenance — who says otherwise.

Section 116 (old IEA s. 112) makes legitimacy a matter of conclusive proof — the strongest presumption the Act knows.

The rule. 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), is conclusive proof that he is the legitimate child of that man. Break it into its two triggers:

• born during a valid subsisting marriage; or
• born within 280 days of the marriage ending (death or divorce), provided the mother has not remarried.

Because it is conclusive proof (Unit 1, s. 2(1)(b)), the court, once the triggering fact is shown, must treat the child as legitimate and shall not allow evidence to prove the contrary.

The single exception — non-access. The presumption can be displaced in one way only: by showing that the parties to the marriage had no access to each other at any time when the child could have been begotten. “Access” here means the opportunity for marital intercourse, not proof of the act itself; “non-access” means it was impossible for the husband to be the father because the spouses were never together at the relevant time (he was imprisoned abroad, they were separated, and so on). Short of proof of non-access, no evidence — however suggestive — is admitted to bastardise the child.

🔑 The presumption attaches to the marriage that was subsisting at the birth, not to whichever man the biology might suggest. This is the trap in every problem: examiners plant gestation arithmetic to tempt you toward the previous husband, but the section looks only at which valid marriage the child was born during.

What about DNA? Modern courts have wrestled with whether a DNA test can override s. 116. The settled position is that the conclusive presumption still governs: a court will not order a paternity test merely to allow a husband to escape his obligations, and where the presumption applies, even a DNA result to the contrary yields to it unless non-access is first established. Genuine proof of non-access remains the only lawful route.

🧩 WORKED EXAMPLE — the remarrying widow

Facts. P is the wife of X. Two months after X dies, P marries Y. Five months after that marriage a son, Z, is born to P. Y now denies that Z is his child. Discuss Z’s legitimacy.

Rule. Birth during the continuance of a valid marriage is conclusive proof of legitimacy (s. 116), displaceable only by proof of non-access.

Apply. Z was born five months into P’s valid, subsisting marriage with Y — that is, during the marriage. Section 116 therefore makes Z conclusively Y’s legitimate child. The tempting arithmetic (Z arrives about seven months after X’s death, so “he must be X’s”) is legally irrelevant: the section asks only which valid marriage the child was born during. Y cannot lead evidence of short gestation or of X’s paternity; he could escape only by proving he had no access to P when Z was conceived.

Conclusion. Z is the legitimate child of Y, unless Y proves non-access.

Decoy. The gestation sum (“born too soon to be Y’s”) is the plant — s. 116 turns on the marriage in existence at birth, not on biology.

Section 116, BSA 2023: “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.”

In Simple Terms: A child born inside a valid marriage (or within 280 days of it ending, if the mother has not remarried) is conclusively the husband’s legitimate child. The court will not hear evidence to the contrary — the only escape is proving the couple never had the chance to conceive the child together (non-access).

flowchart TD
    ROOT["Legitimacy under s. 116"]:::root
    ROOT --> Q1{"Born during a valid marriage,<br/>or within 280 days of its end<br/>(mother unmarried)?"}
    Q1 -->|"No"| OUT["s. 116 does not apply<br/>legitimacy proved by ordinary evidence"]:::leaf
    Q1 -->|"Yes"| CP["CONCLUSIVE proof of legitimacy"]:::diamond
    CP --> Q2{"Husband proves NON-ACCESS<br/>at time of conception?"}
    Q2 -->|"No"| LEGIT["Child is legitimate — no contrary evidence allowed"]:::leaf
    Q2 -->|"Yes"| REB["Presumption displaced"]:::diamond
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

• Goutam Kundu vs State of West Bengal (1993) — courts cannot order a blood/DNA test as a matter of course to displace s. 112 (now s. 116); the conclusive presumption stands unless non-access is shown, and no one can be compelled to give a sample.
• Nandlal Wasudeo Badwaik vs Lata Nandlal Badwaik (2014) — where a DNA test is genuinely available and reliable, and access is genuinely in issue, truth may prevail; but the presumption of s. 112 is rebutted only by establishing non-access.
• Kamti Devi vs Poshi Ram (2001) — the presumption under s. 112 is conclusive and can be dislodged only by strong preponderant proof of non-access, not by mere probabilities.
• Sham Lal vs Sanjeev Kumar (2009) — reaffirmed that a child born during a valid marriage is legitimate and access, once shown possible, keeps the presumption alive.

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