Q. Is birth during marriage, conclusive proof of legitimacy? What is presumption as to abetment of suicide by married women? What is presumption as to dowry death? [MPCJ 2018]
Ans. Presumption as to legitimacy:- Section 112 of the Indian Evidence Act is based on the maxim Pater est quem nuptiae demonstrant and Semper praesumitur pro legitimatione puerorum and thereby upholds public policy that children are not branded as bastard and mother as unchaste. With respect to birth during marriage a conclusive presumption of legitimacy is raised only if following pre – requisites are satisfied-
- That the child is borne during the existence of marriage or if marriage is dissolved then within 280 days after such dissolution while the mother remains unmarried.
- And that the opposing party has failed to establish non-access between the parties to the marriage at any time when the concerned child could have been begotten. The hon’ble apex court has held in its judgment Gautam Kundu v State of W.B, AIR 1993 SC 2295 that access and non-access in the sense of section 112 of the act simply means the existence or non-existence of mere opportunity for sexual intercourse and not the actual co-habitation or proof of actual lack of sexual intercourse.
As above, the nature of presumption under section 112 of the act is conclusive proof of the legitimacy. So, as per section 4 of the act it is non- rebuttable and no amount of evidence is admissible to disprove it.
Presumption as to abetment of suicide:- The relevant law is contained under section 113 A of the Indian Evidence Act. It employs the expression “Court May Presume” that husband or relative of the husband had abetted the commission of suicide by a woman if following conditions are satisfied-
- That the alleged suicide is committed by a married woman.
- That such suicide was committed within a period of seven years from the date of marriage.
- That the husband or relative of such husband had subjected woman to cruelty.
As above, the presumption is in the nature of “May Presume”. So, as per section 4 of the act the court is vested with discretion to raise that presumption or not looking to various circumstances such as human experience, the common course of natural events, human conduct, public and private business. Moreover, even if such presumption is raised, it is rebuttable in nature and thereby contrary evidence may be lead to dispel it.
Presumption as to as to dowry death:- The relevant law is contained under section 113 B of the Indian Evidence Act and section 304 B of the Indian Penal Code. It employs the expression “Court Shall Presume”. Collectively under aforesaid provision, a presumption is raised that a person has committed dowry death if following conditions are satisfied-
- That the alleged death of a married woman was caused.
- That such death had happened within a period of seven years from the date of marriage.
- That it is shown that the husband or relative of such husband had soon before her death had subjected the woman to cruelty or harassment.
- That such cruelty or harassment was in connection with any demand for dowry.
As above, unlike section 113 A , the presumption under section is in the nature of “Shall Presume”. So, as per section 4 of the act it is mandatory for the court to raise that presumption once the forestated preliminary facts are established without regard to the logical inclination of the mind as influenced by the facts. But, it is also rebuttable in nature and thereby contrary evidence may be lead to dispel it.