Section 112 IEA vs Section 116 BSA — Birth During Marriage, Conclusive Proof of Legitimacy

In India, the rule that a child born during a valid marriage is conclusively the legitimate child of the mother's husband moved from Section 112 of the Indian Evidence Act, 1872 (IEA) to Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) on 1 July 2024. The only change is "legitimate son" to "legitimate child".

At a glance

What changed

• Minor edit — "son" to "child". IEA s.112: "shall be conclusive proof that he is the legitimate son of that man". BSA s.116: "shall be conclusive proof that he is the legitimate child of that man". The pronoun "he" is kept in both places where it appears ("that he is", "when he could have been begotten").
• Identical — the conditions. "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" is word for word the same.
• Identical — the rebuttal. "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" is word for word the same.
• Identical — the heading. Both read "Birth during marriage, conclusive proof of legitimacy."
• Why "minor edit", not "modified" — a reading. Section 13(1) of the General Clauses Act, 1897 provides that in Central Acts, unless there is anything repugnant in the subject or context, "words importing the masculine gender shall be taken to include females". The Supreme Court applied s.112 to a daughter in Nandlal Wasudeo Badwaik (paras 14–18), describing the effect of the section as proof that "the child is a legitimate child". On a reading of these texts, "child" makes the gender-neutral scope express rather than enlarging it. The official mapping table labels the row "modified"; this page treats it as a drafting change.
• Related definition — Minor edit. "Conclusive proof" moved from IEA s.4 ("declared by this Act") to BSA s.2(1)(b) ("declared by this Adhiniyam"). The effect is the same: the Court "shall not allow evidence to be given for the purpose of disproving it".

Statutory text (relevant extract)

Extract — Section 116, BSA:

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.

Extract — Section 112, IEA (the changed words only):

… shall be conclusive proof that he is the legitimate son of that man …

Extract — Section 2(1)(b), BSA:

"conclusive proof" means when one fact is declared by this Adhiniyam to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it;

How it works

Section 116 has two limbs that raise the presumption and one exception that displaces it.

1. Birth during the marriage. The person must have been born "during the continuance of a valid marriage" between the mother and the man. The marriage must be "valid"; on a reading of the text, a void marriage does not engage the first limb.
2. Or birth within 280 days after dissolution. A birth "within two hundred and eighty days after its dissolution" also counts, but only if "the mother remaining unmarried". The section does not define "dissolution"; on a reading of the text, the general word is not confined to divorce.
3. The fact proved is legitimacy. Once either limb is proved, the Court must treat legitimacy as proved (s.2(1)(b)). In Ivan Rathinam v. Milan Joseph the Supreme Court held that "conclusive proof of legitimacy is equivalent to paternity" (para 28) and rejected the view that paternity can be determined independently of legitimacy (para 33).
4. The only exception is non-access. The presumption yields only if "the parties to the marriage had no access to each other at any time when he could have been begotten". The time is the period of possible conception, not the whole marriage.
5. What "access" means. Goutam Kundu (p. 928) described access and non-access as "the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation". Ivan Rathinam (para 29) said access "merely refers to the possibility of an opportunity for marital relations", and non-access "means the impossibility, not merely inability" of such relations.
6. Burden. The person asserting illegitimacy carries the burden and can discharge it "only through 'non-access'" (Ivan Rathinam, para 28).

Worked example (from Ivan Rathinam, paras 32 and 51). A son was conceived in 2001 while his mother and her husband were married and living under the same roof, from 1989 to 2003. The son later claimed that another man was his biological father and relied on letters said to be written by that man. The letters could not be proved, and the Register of Birth named the husband. Access between the spouses was established, so the son was presumed to be the husband's son, and an alleged affair did not change that.

What this means in practice

For a husband disputing paternity (for example, in a maintenance case under BNSS s.144). Plead non-access specifically and support it with evidence of where each spouse was during the period of possible conception. Goutam Kundu (p. 929) upheld the refusal of a blood-group test where the purpose of the application was "nothing more than to avoid payment of maintenance". Ivan Rathinam (para 31) records that DNA tests may be ordered only if a strong prima facie case of non-access is made out.

For the mother or the child. Proof of a valid marriage and a birth during it, or within 280 days after dissolution while the mother remained unmarried, is enough to raise the presumption. Evidence of other relationships does not, by itself, rebut it (Ivan Rathinam, para 32).

For a person claiming to be the child of someone other than the mother's husband. The statute places the burden on the person asserting illegitimacy. Ivan Rathinam shows that a DNA test against a third party will not be ordered where the evidence already establishes access between the spouses and the balance of interests is against the test (paras 47, 51).

For the advocate and the trial court. Record findings on access in the period of possible conception before considering any scientific test. Ivan Rathinam (para 47) requires two findings in sequence: first that the existing evidence is insufficient, and then a positive finding on the balance of interests. The Court also weighed the privacy and dignity of the person asked to give a sample, and of the mother, under Article 21 (paras 38, 43, 45).

Judgments that still matter

BSA s.116 repeats the operative words of IEA s.112, so on a reading of the text judgments construing those words remain relevant. None of the judgments below construes s.116 itself.

Goutam Kundu v. State of West Bengal and Anr., [1993] 3 S.C.R. 917 — 14 May 1993. S. Mohan J. delivered the judgment of a two-Judge Bench (with A. M. Ahmadi J.). A husband ordered to pay maintenance under s.125 CrPC sought a blood-group test of the wife and child to disprove paternity. The Court said the section "requires the party disputing the paternity to prove non-access in order to dispel the presumption" (p. 928). It set out five propositions: courts in India cannot order a blood test as a matter of course; a prayer made to have a roving inquiry cannot be entertained; "There must be a strong prima facie case in that the husband must establish non-access"; the Court must weigh whether the test would brand a child illegitimate and the mother unchaste; and no one can be compelled to give a blood sample (pp. 928–929). The appeal was dismissed and the refusal of the test upheld (p. 929). Why it matters now: its threshold for scientific testing is the starting point that Ivan Rathinam followed in 2025 (para 30).

Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr., [2014] 1 S.C.R. 120 — 6 January 2014. Chandramauli Kr. Prasad J. delivered the judgment of a two-Judge Bench (with Jagdish Singh Khehar J.). The Supreme Court had itself twice directed DNA tests, and the respondents had not opposed the prayer when it was considered (para 10). Both reports excluded the husband as the biological father of the girl. The Court accepted that the conditions of s.112 were established and no finding on non-access had been recorded (para 15). It nevertheless held that "when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former" (para 16), and that s.112 "does not create a legal fiction but provides for presumption" (para 17). The appeal was allowed and the High Court's judgment set aside so far as it directed maintenance for the child, without recovery of payments already made (para 20). Why it matters now: it is the leading case on a DNA report already on record. Its scope was later confined — see the next case.

Ivan Rathinam v. Milan Joseph, [2025] 1 S.C.R. 1009 (2025 INSC 115) — 28 January 2025. Surya Kant J. delivered the judgment of a two-Judge Bench (with Ujjal Bhuyan J.). Although decided after 1 July 2024, it applies IEA s.112. The Court held that legitimacy "determines paternity" under s.112 until rebutted by proof of non-access (para 70(i)). It explained access and non-access (para 29) and held that "an 'additional' access or 'multiple' access does not automatically negate the access between the spouses" (para 32). It set two conditions for a DNA test: insufficiency of evidence and a positive finding on the balance of interests (para 47). It distinguished Nandlal because all parties there had consented to the test and the only question was the admissibility of its result (para 49). It also distinguished Dipanwita Roy v. Ronobroto Roy, where the test went to adultery in a divorce case and did not expressly disturb the s.112 presumption (para 50). The appeal was allowed; the High Court's judgment of 21 May 2018 and the Family Court's order of 9 November 2015 were set aside, the maintenance proceedings were quashed, and the respondent was presumed to be the legitimate son of his mother's husband (para 70). Why it matters now: it is the most recent statement of how the presumption, now in s.116, interacts with DNA evidence and the right to privacy.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement". The BSA came into force on 1 July 2024 (S.O. 849(E), 23 February 2024). A paternity or maintenance proceeding pending on that date applies IEA s.112; one begun later applies BSA s.116. Because the two texts differ by one word, the outcome should not turn on which applies. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Section 112 of the Evidence Act? Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 replaced Section 112 of the Indian Evidence Act, 1872 from 1 July 2024. It keeps the same rule: birth during a valid marriage, or within 280 days after its dissolution with the mother remaining unmarried, is conclusive proof that the person is the legitimate child of the mother's husband.

What changed in Section 116 BSA compared with Section 112 IEA? Only one word. Section 112 IEA said the birth was conclusive proof that the person is the "legitimate son" of the man; Section 116 BSA says "legitimate child". The rest of the text, including the 280-day window and the rebuttal by proof of no access, is word for word the same.

How can the presumption under Section 116 BSA be rebutted? Only by showing that the parties to the marriage had no access to each other at any time when the child could have been begotten. In Ivan Rathinam v. Milan Joseph (2025 INSC 115, para 29) the Supreme Court said non-access means the impossibility, not merely inability, of the spouses to have marital relations.

What does conclusive proof mean in Section 116 BSA? Section 2(1)(b) BSA says that when one fact is declared to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved and shall not allow evidence to disprove it. Section 116 itself opens one exception: proof that the spouses had no access to each other.

Does proof that the mother had an affair displace the presumption of legitimacy? Not by itself. In Ivan Rathinam v. Milan Joseph (para 32) the Supreme Court held that an additional or multiple access does not automatically negate the access between the spouses or prove non-access. The spouses there lived together throughout the relevant period, so the son was presumed to be the husband's.

Can a court order a DNA test to disprove paternity under Section 116 BSA? Not as a matter of course. Goutam Kundu v. State of West Bengal ([1993] 3 S.C.R. 917, pp. 928-929) held that a strong prima facie case of non-access is needed and roving inquiries cannot be entertained. Ivan Rathinam (para 47) requires insufficiency of the existing evidence and a positive finding on the balance of interests before a test is ordered.

What if a DNA test already shows the husband is not the father? In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik ([2014] 1 S.C.R. 120, para 16) the Supreme Court held that where a genuine DNA report conflicts with the conclusive proof under Section 112 IEA, the scientific proof prevails, and it set aside the maintenance order for the child (para 20). Ivan Rathinam (para 49) later explained that in Nandlal the tests had been ordered without opposition and only admissibility was in issue.

Which Act applies to a paternity dispute pending on 1 July 2024? Section 170(2) BSA provides that any application, trial, inquiry, proceeding or appeal pending immediately before the Adhiniyam came into force is dealt with under the Indian Evidence Act, 1872 as if the BSA had not come into force. Such a case applies Section 112 IEA, whose rule is the same.

Related

• Section 114 Evidence Act vs Section 119 BSA — court presumptions
• Sections 113A–113B Evidence Act vs Sections 117–118 BSA — presumptions in dowry cases
• Sections 101–104 Evidence Act vs BSA — burden of proof
• Section 125 CrPC vs Section 144 BNSS — maintenance
• Maintenance for wife, children and parents — BNSS 144 vs CrPC 125
• Evidence Act to BSA — full section mapping table

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 1(2), 2(1)(b), 116, 117 and 170; commencement from footnote 1 to Section 1 of the official text.
• Indian Evidence Act, 1872 (India Code text): Sections 4, 112 and 113.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Section 144.
• General Clauses Act, 1897: Section 13.
• Judgments read in full text (Veritect Supreme Court corpus): Goutam Kundu v. State of West Bengal and Anr. (1993_3_917_929_EN.md, with the report PDF); Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr. (2014_1_120_134_EN.md, with the report PDF); Ivan Rathinam v. Milan Joseph (2025_1_1009_1040_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.