Indian Evidence Law | Updated 20 October 2026
Section 112 Evidence Act: Birth During Marriage and Conclusive Proof of Legitimacy
The presumption of legitimacy protects the legal status of a child born during a valid marriage. The corresponding current provision is Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), in force from 1 July 2024.
Section 116 BSA: Statutory provision
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 child 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.
Official statutory text: Bharatiya Sakshya Adhiniyam, 2023 (India Code PDF).
Former Section 112 of the Indian Evidence Act, 1872
The original provision stated:
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.
The essential presumption and the exception for non-access have been carried forward. The modern text is gender-neutral in its reference to the child.
Meaning of conclusive proof and non-access
Conclusive proof is a statutory rule requiring the court to treat the legitimacy of the child as established once the specified foundational facts are proved, except where the section itself permits proof of non-access.
Valid marriage means a marriage legally recognised under the applicable law. Non-access concerns the absence of opportunity for sexual intercourse between the spouses during the possible period of conception. Physical separation may be relevant, but allegations of infidelity alone do not establish non-access.
When does the presumption apply?
- The child is born during the continuance of a valid marriage between the mother and the man concerned; or
- the child is born within 280 days after the marriage is dissolved, provided the mother has remained unmarried; and
- the exception of non-access during the possible conception period has not been established.
The 280-day rule is not a general deadline for every paternity claim. It specifically concerns a birth after dissolution of marriage where the statutory conditions are met.
DNA testing and the child's rights
DNA evidence may arise in paternity disputes, but a DNA test is not ordered as a matter of routine merely because a spouse challenges paternity. Courts must consider the presumption of legitimacy, whether the evidence is genuinely necessary, and the child's privacy, dignity and welfare.
In Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023), the Supreme Court emphasised that a child's DNA test should not ordinarily be used to investigate allegations of adultery when the relevant issue can be addressed without it. The treatment of DNA evidence depends on the facts and binding judicial decisions; a genetic report does not automatically dispense with the statutory legal analysis.
Practical illustrations
Child born during marriage
A child is born while the parents are in a valid marriage. The law treats the child as legitimate under Section 116, unless the legally required non-access is established.
Child born after divorce
A child is born 200 days after a marriage is dissolved and the mother has not remarried. The provision may apply, subject to the other statutory requirements and the non-access exception.
Spouses living apart
Living in different cities may provide relevant evidence, but the court must assess whether the spouses had any opportunity for access during the period when conception could have occurred.
Frequently asked questions
What is Section 116 of the Bharatiya Sakshya Adhiniyam?
It provides conclusive proof of legitimacy for a child born during a valid marriage or within 280 days after its dissolution while the mother remains unmarried, subject to proof of non-access.
What is non-access under the provision?
Non-access means the spouses had no opportunity for sexual relations at any time when the child could have been conceived; merely alleging adultery is not enough.
Does Section 116 automatically permit DNA testing?
No. Courts consider the statutory presumption, the necessity of the test, the child's privacy and welfare, and the circumstances of the particular dispute.
Official sources and further reading
Bharatiya Sakshya Adhiniyam, 2023 - official India Code | Supreme Court judgment discussing Sections 112 and 116 (21 April 2026) | Indian Evidence Act overview.
Legal information is general in nature. Applicability depends on the facts, governing personal law and judicial decisions.