Ans: Section
112 of the Indian Evidence
Act 1872 deals with a presumption in respect of birth of a child during
marriage. The presumption under this section is a conclusive proof of
legitimacy. Under Section 112 of the Indian Evidence Act, a child born during
the continuance of a valid marriage between his mother and any man, or within
two hundred and eighty days(280) after its disintegration, the mother staying unmarried, will be convincing evidence that he is the authentic child of that man, except if it very well may be demonstrated that the gatherings to the marriage had no entrance to one another whenever when he could have been generated.
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| Legitimacy |
Presumption of legitimacy:-
The
conclusive presumption of law is to be found in the provision of Section 112.
It deals with the presumption of the legitimacy of a child. The effect of the
provision is that a child born to a married parents is conclusively presumed to
be their child. The same presumption arises where the marriage was dissolved
and the child was born within 280 days after dissolution, the mother remaining
unmarried in the meantime.
The
essential condition for the presumption to arises are:-
1. The child should have been born during the continuance of a valid marriage,
or if the marriage was dissolved, within 280 days after its dissolution, the
mother remaining unmarried.
2. The parties to the marriage should
have had access to each other at any time when the child could have been
begotten.
Chilkuri Venkateshwarlu v. Venkatanarayana
AIR 1954 SC 176
Facts of the case:- In this case, the wife proved the visits of her
husband to her house. The Supreme Court, while admitting the contention of the
wife, declared the child as her legitimate child. It is that maternity is a
fact and paternity is a surmise(doubt). It is very difficult to establish
paternity. However, proof of non access rebuts the presumption under Section 112 of the Indian Evidence Act 1872.
During subsistence of valid marriage:-
Subsistence
of valid marriage is fully satisfy by the fact of marriage and of living
together. The presumption of legitimacy is a presumption of law child born
during the continuance of a valid marriage between his mother and a man shall
be treated as legitimate unless the contrary is proved.
The fact
that a woman live with a person for 33years and was recognized by the relative
as husband and wife, living together for longer period voter’ list, bank
account , ration card and other legal document carried her name as wife of that
person. She was also addressed his surname. The fact of the adopted son
was acknowledged in letter. In this
matter the Supreme Court said that the presumption of marriage raised on such
fact was just and legal.
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