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.
Comments
`Conclusive evidence` and `conclusive proof` not different
There is no difference between `conclusive evidence` and `conclusive proof`, the aim of both being to give finality to the establishment of the existence of a fact from the proof of another; Somwanti v. State of Punjab, AIR 1963 SC 151.
DNA Test
The DNA test cannot rebut the conclusive presumption envisaged under section 112 of the Indian Evidence Act. The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof; Shaik Fakruddin v. Shaik Mohammed Hasan,AIR 2006 AP 48.
Presumption of proof
Refusal by wife on a genuine ground, to go to Delhi and get hers and her child`s blood got tested there, does not support drawing an adverse inference against her; Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174.
In absence of dislodging of presumption by proof a husband cannot derive much help from her admission that when she met him, she was in period of menses and after that she gave birth to a child who is an illegitimate one, born validly out of wedlock of hers with her husband; Devesh Pratap Singh v. Sunita Singh, AIR 1999 MP 174.
Scope
Section 112 read with section 4 really have the effect of completely closing and debarring the party from leading any evidence with respect to the fact which the law says that to be the conclusive proof of legitimacy and paternity of child covered by 112. The Parties to the marriage had no access to each other and to test blood group violates right under article 21 of Constitution; Ningamma v. Chikkiah, AIR 2000 Karn 50.