Section 112 of the Indian Evidence Act provides a strong presumption of legitimacy for a child born during a valid marriage, placing the burden of proof on the party disputing parentage.

1. Challenging the order of learned Judicial Magistrate II, Gobichettipalayam, passed in C.M.P.No.772 of 2009 in M.C.No.10 of 2007 on 27.07.2009, the present revision has been filed.

2. Petitioner and the first respondent are husband and wife and the second respondent is their son. Due to misunderstandings between them, the first respondent left the matrimonial home. The petitioner has filed H.M.O.P.No.54 of 2005 on the file of learned Sub-ordinate Judge, Mettur, seeking restitution of conjugal rights and later, the same was withdrawn by the petitioner. Thereafter, the petitioner filed H.M.O.P.No.106 of 2007 on the file of learned Subordinate Judge, Mettur, seeking divorce. Disputing the parentage of the second respondent son, the petitioner has filed I.A.No.91 of 2008 in H.M.O.P.No.106 of 2007 seeking conduct of a DNA test and the same was dismissed under orders dated 12.11.2008. Challenging the same, the petitioner filed C.R.P.(PD) No.4122 of 2008 before this Court, which was dismissed under orders dated 12.01.2009 recording the memo filed by the first respondent informing her willingness for divorce and granting liberty to the petitioner to raise his contentions in other proceedings pending between them. The first respondent has filed M.C.No.10 of 2007 on the file of learned Judicial Magistrate II, Gobichettipalayam, seeking maintenance in a sum of Rs.5,000/-per month for her son. Therein, the petitioner has filed C.M.P.No.772 of 2009 seeking conduct of DNA test towards determining the parentage of the child. By the order under challenge, the Court below dismissed such petition.

3. It is the contention of learned counsel for petitioner that the first respondent/wife had conceived even before the marriage between the petitioner and the respondent on 04.03.2004 and the conduct of a DNA test was essential to prove the petitioner’s case. Learned counsel relied on the judgment of the Apex Court in Sharda v. Dharmpal 2003 (2) CTC 760 : AIR 2003 SC 3450 : (2003) 4 SCC 493 : LNIND 2003 SC 366.

4. Heard learned counsel for respondents on the above submission.

5. The decision in Sharda v. Dharmpal (supra), arose in a case where medical examination of a wife was sought towards establishing her state of mind. Therein, it is informed that compelling a person to undergo medical examination under an order of Court would not be violative of rights to one’s right to privacy/liberty guaranteed under Article 21 of he Constitution of India. In such case, the applicability of Section 112 of the Indian Evidence Act did not even rise for consideration. Section 112 of the Indian Evidence Act reads thus:

“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, them other 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.”

The presumption that Section 112 of the Indian Evidence Act provides is in the nature of conclusive proof. The judgment of the Apex Court in Banarsi Dass v. Teeku Dutta (MRS) and Another (2005) 4 SCC 449 : LNIND 2005 SC 433 : (2005) 2 MLJ 181, informs thus:

“9. It was noted that Section 112 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) requires the party disputing the parentage to prove non-access in order to dispel the presumption of the fact under Section 112 of the Evidence Act. There is a presumption and a very strong one, though a rebuttable one. Conclusive proof means proof as laid down under Section 4 of the Evidence Act.

10. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater is est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of l