Section 112 of the Indian Evidence Act and the presumption of a child's legitimacy

Background

The Kerala High Court has held that a DNA test cannot be ordered as a matter of course merely on the basis of a dispute over the paternity of a child born during the subsistence of a valid marriage. Section 112 of the Indian Evidence Act, 1872 embodies a rule of public policy intended to protect the legitimacy of children born during a valid marriage. Under the provision, such a birth is treated as conclusive proof of legitimacy unless it is shown that the spouses had no access to each other at the time when the child could have been conceived. Without specific pleadings and prima facie material showing non-access between the spouses during the relevant period, a direction for DNA profiling cannot be sought. Proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 are concerned with adjudicating domestic violence and granting statutory reliefs, not with determining biological parentage. An understanding reached during mediation is relevant and deserves consideration, but parties cannot by consent compel a court to pass an order contrary to law or public policy.