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Oxford University Comparative Law Forum

Is The Legislative Policy on Legitimacy Really Legitimate?

Rashmin Khandekar*

(2009) Oxford U Comparative L Forum 4 at ouclf.iuscomp.org | How to cite this article this article

'It must be remembered that law is not a mausoleum. It is not an antique to be taken down, dusted, admired and put back on the shelf. It is like an old but vigorous tree, having roots in history, yet continuously taking new grafts and putting out new sprouts and occasionally dropping dead wood. It is essentially a social process, the end product of which is justice and hence it must change with changing social values. Otherwise there will be estrangement between law and justice and law will cease to have legitimacy.'1

Justice P.N. Bhagwati, former Chief Justice of India

Table of contents


Legislatures across the world had adopted a conclusive presumption2 of legitimacy ("legitimacy presumption") of a child born during a lawful wedlock in order to protect the institution of family and secure the future of the child.3 The legitimacy presumption is based on the principle, 'Odiosa et inhonesta non sunt in lege prae sumenda',4 read with 'Pater est quem nuptioe demonstrant'5 and Semper praesumitur pro legitimatione puerorum, et filiatio non potest probari6. The said presumption is also known as Lord Mansfield's Rule, named after the English noble who articulated it in the name of 'decency, morality, and policy' to prevent husband and wife from "bastardizing" the children of their marriage. However, today, the necessity of the legitimacy presumption has been greatly diffused. This is largely due to the changes in social perception and availability of superior scientific evidence to establish paternity. Moreover, conclusive presumptions are as such rules of evidence7 which are generally frowned upon by the Courts as they curtail the "discretion" of the Court.8 Further, the legitimacy presumption also operates against the mother and the child under certain peculiar circumstances.9 The presumption has also become obsolete in the era of same sex relationships. All these factors have mandated the reconsideration of the continued existence of the said presumption which has led to the said presumption being abolished or struck down in various jurisdictions. In India though, the Legislature, and accordingly, the Supreme Court of India continue to endorse a strict construction of the said conclusive presumption. This article seeks to put forth a constitutional challenge to the said presumption which has never been pleaded in India, refers mainly to paradigm American and English case law to depict the conflict between competing fundamental rights caused by the said presumption, and inter alia recommends that DNA evidence qualified with the pre-requisite of proving multiple access,10 be allowed to rebut the said presumption.

This essay is divided into six sections. Section I deals with the application and administration of the legitimacy presumption in India. Section II deals with the constitutional sanction to the said legitimacy presumption in India. Section III deals with the plausible constitutional challenge to the said presumption - reference is made to certain principles of US Constitutional Law to sustain the said challenge. Section IV sets out the landmark judgments of US Courts elucidating the conflict of competing fundamental rights. Section V mainly describes the development of the legitimacy presumption, particularly in the UK, and Section VI sets out the theoretical framework devised by the author to mitigate the friction caused by the conclusive legitimacy presumption keeping Indian conditions in mind.

I. The Indian Context

In India, the Indian Evidence Act 1872 recognises two types of legal presumptions - presumptions of fact and presumptions of law.11 Section 412 of the Act provides the scaffold for the only conclusive presumptions cast in Sections 79 to 90-A and Sections 111-A to 114-A of the Act. The conclusive legitimacy presumption of a child born during wedlock is embodied in Section 11213 of the Act and can be displaced only by proof of non-access14 between the parties to the marriage at a time when according to the ordinary course of nature the husband could have fathered the child.15 The Supreme Court has chosen not to read DNA16 evidence as proof of "non-access", as it may result in undermining the legislative policy.17 In fact, the Supreme Court has held that the legitimacy presumption is so strong that even if DNA evidence shows a man not to be the father of the child, this will not override the said presumption.18 Thus, the Indian Judiciary has steadfastly adhered to the principle of separation of powers19 and has accordingly observed a fastidious regard for the limitations on its own power and discretion. While the debate on the sustainability of the legitimacy presumption has been gaining momentum, the Indian Judiciary continues to endorse the presumption in its most conservative form.20 In the meantime, the friction continues between a child's right to be recognised as a legitimate relation of his father, his right to be protected against exploitation and moral and material abandonment on the one hand, and the husband's right to refuse to maintain a child whom he has not biologically fathered21 and disown the onerous liability imposed upon him on the other hand.

II. The requisite Constitutional Sanction in India

The legitimacy presumption embodied in Section 112 of the Act is an expression of the legislative intent expressed in Article 15(3)22 of the Constitution of India ("the Constitution"), which enables the state to take proactive measures and also make special provisions for the protection of women and children. While Article 15(3) is contained in Part III of the Constitution which enumerates and declares the fundamental rights, this principle of public policy also finds its basis in various "Directive Principles of State Policy" contained in Part IV of the Constitution. Specifically, Article 39(f)23 of the Constitution allows legislation in favour of children in order to secure their childhood and safeguard their interests. Although the said Part IV is non justiciable, the Constitution strongly encourages the legislature to make provisions espousing the principles enshrined in the said part.24

III. A Plausible Constitutional Challenge

According to Article 2125 of the Constitution, no person can be deprived of his life or liberty, save by procedure established by law. The Supreme Court of India had initially held that "procedure established by law" in Article 21 of the Constitution only mandated that the "law" in question must be passed by a competent legislature and that compliance with "due process"26 was not required. It was consequently held that US judgments dealing with the due process clause were of no persuasive authority to the judiciary in India in interpreting the provisions of the Constitution.27 This view, however, was emphatically overruled by the Supreme Court of India in the case of Maneka Gandhi v. Union of India28 wherein it was held that "procedure established in by law" in Article 21 of the Constitution must satisfy the test of due process. In other words, it was held that no person could be deprived of his life or personal liberty except according to a law which is fair, just and reasonable. Thus, a statute or a provision creating a presumption which is arbitrary or which denies a fair opportunity to challenge it or adduce evidence relevant to one's defence may be challenged as infringing the due process. A series of landmark judgments passed by the US judiciary may also be referred to in this regard.29 Accordingly, in the present case, it is contended that a provision of law completely disallowing a person to adduce evidence to prove or disprove paternity impinges upon the right guaranteed under Article 21 of the Constitution as being arbitrary, unreasonable and harsh, and therefore liable to be struck down.

Section 112 of the Act can further be tested against Article 14 of the Constitution and challenged as being arbitrary. The argument is that there exists no intelligible differential30 in allowing a defence of non-access to be set up while barring recourse to other defences, including the presenting of scientifically conclusive evidence. Arbitrariness lies in the fact that there is no legitimate reason why S. 112 of the Act should allow a defence of non-access to a man but at the same time bar his recourse to other defences under the guise of pursuing a public policy against making children become illegitimate, which is likely to be thwarted by the operation of the same section in a slightly different situation, as proof of non-access result in bastardization of children and thus equally operate against the policy of the legislature.

Further, the Supreme Court of India has held that legislation which once was perfectly valid may become unconstitutional on account of passage of time and change in circumstances31. Accordingly, taking into account the social transformation and scientific development, cessante ratione legis cessat ipsa lex,32 may be pleaded and the directive contained in Article 51-A (h)33 can be relied upon to advance the challenge.

IV. The Legitimacy Presumption Under US Law

Various states within the US have their own Paternity Acts. In the states of Alabama, North Dakota, Wyoming, Tennessee and Wisconsin, the biological father of the child enjoys no legal standing, and the conclusive marital presumption has been upheld as constitutional. On the other hand, the states of Arizona, Arkansas, Colorado, Indiana, Kansas, Maryland, Minnesota, Mississippi, Montana, New Jersey, New York and Washington provide a standing to the biological father and permit the litigation of a child's paternity irrespective of his mother's marital status. It is beneficial to refer to the judicial pronouncements in the U.S. as the conflict of competing fundamental rights is apparent in certain landmark judgments of US Courts. In the case of Michael v. Gerald34 the US Supreme Court held that a biological father was barred from rebutting the marital presumption and establishing his paternity notwithstanding substantial past contact with the child. On the other hand courts in Massachusetts35 have held that the father-child relationship is strictly biological and have in a way abolished the legitimacy presumption whereas courts in New York36 have largely considered the child's interest to be paramount. The Superior Court of Pennsylvania37 held that the termination of the family unit, and the strained father-child relationship between the biological father and his child was immaterial and could not displace the legitimacy presumption. The Michigan Supreme Court38 held that only the legal parents would have a right to rebut the presumption and that no other person could endeavour to displace it. This pronouncement is as such contrary to the principle laid down in Brian C. v. Ginger K.39 which recognised rights of 'men' other than the husband to establish legal parentage. Similarly, even R.A.J. v. L.B.V.40 interpreted the word 'father', in a statute listing individuals permitted to commence a paternity action, to include 'putative father'. Thus ironically, the only thing which can be conclusively presumed is that there is no uniformity with regard to the enforcement of the legitimacy presumption in the US.

V. The Legitimacy Presumption Under English Law and in Other Common Law Countries

Initially, English law on the subject was extremely rigid. In Russell v. Russell41 it was held that neither the declarations of the wife, nor her testimony that the child was the child of a man other than the husband were admissible as evidence to prove or disprove paternity. Similarly, the evidence of the husband that he was not the father of the child was also inadmissible in that regard. It should be mentioned that Russell v. Russell was a landmark judgment which was quoted with authority across the globe.42

It was the dissenting opinion of Lord Sumner in this case which eventually assumed more importance over the years. Lord Sumner observed that, "in the administration of justice nothing is of higher importance than that all relevant evidence should be admissible and should be heard by the tribunal that is charged with deciding according to the truth". The words "all relevant evidence" have assumed prime importance.

In England scientific development and social transformation led to the passing of the Family Reforms Act 1969, later replaced by the Family Reforms Act 1987, enabling the judiciary to determine the parentage rather than paternity. This legislation empowered the Courts to conduct paternity tests to determine the biological father of the child. In Re Le43 it was held that the Court had the power to order an infant to be subjected to a blood group test notwithstanding that the guardian did not consent. In W v. W,44 Lord Hodson explained the dilemma which the judiciary faced on account of the erstwhile compelling presumption. He observed:

"The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of the truth. Scientific evidence of blood groups had been available since the early part of this century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of paternity. Why should the risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong?"

In a recent judgment, Thorpe LJ reaffirmed the Hodson principle and observed that "As science has hastened on and as more and more children are born out of marriage it seems to me that the paternity of any child is to be established by science and not by legal presumption or inference."45

Interestingly, in Ireland the legitimacy presumption was always regarded as a strong rather than conclusive presumption. In Yool v. Ewing,46 Sir Andrew Porter MR observed:

"Now, the presumption of legitimacy in the case of a child born during wedlock is not one juris et de jure... The question is one of fact. But the presumption is of enormous strength, and will not be rebutted in an ordinary case, where husband and wife live together, by mere evidence, or even proof, that a person or persons other than the husband had improper relations with the wife. In such a case the law, on the clearest grounds of public policy and decency, will not allow any enquiry as to who is the father. But it might be otherwise [where]... the husband and wife were not living under the same roof, though... there was clearly possibility of access."

But the ambiguity regarding the legitimacy presumption is far from being settled around the world. This can be elucidated by the latest and perhaps most interesting discourse on the said subject which has been laid down by the Singapore High Court in WX v. WW47 which has an altogether new dimension to the conclusive presumption. The facts of this case were that the respondent had sexual intercourse with the appellant as well with as another person, H over a reasonable period of time. The respondent then married H and gave birth to a child, Z. Blood group tests revealed that Z was not the child of H, who then separated from the respondent and had the marriage annulled. The respondent then claimed maintenance for the child from the appellant who sought to rely upon the conclusive presumption of legitimacy of a child born during a lawful wedlock. After referring to the common law principle of legitimacy, landmark English judgments and also to the conclusive presumption under the Indian Evidence Act, the learned Judge inter alia distinguished between a "legitimate child" and a "legitimate child of the man lawfully married to the child's mother". The learned Judge observed

"What s 11448 of the Act expressly provides is that the fact that a child was born during the continuance of a valid marriage between his mother and any man, in the absence of evidence of the lack of access, shall be conclusive proof that the child is the legitimate son of that man. It does not say, for instance, that "the son is the issue of that man". Indeed if those words are found in s 114, I would have been constrained to rule in favour of the appellant. But they are not, and the only incontrovertible conclusion is that s 114 is a presumption of legitimacy. The appellant's position requires a further logical step, ie that the legitimate child of a person is his issue. But legitimacy is nothing more than a position, or a status."

The Learned Judge went on to hold that the biological father was liable to maintain his child. Thus, this gives rise to a conclusion which on the one had preserves the conclusive presumption of legitimacy but on the other hand attaches liability of maintaining the child to the biological father.

VI. Conclusion

The primary object of the law of evidence is to find out the truth or otherwise of the disputed facts.49 One of the main principles of the law of evidence is that the best evidence must be given in all cases.50 As Lord Denning MR has observed: 'The object of the Court is always to find out the truth. When scientific advances give us fresh means of ascertaining it, we should not hesitate to use those means whenever the occasion requires.'51 It is trite knowledge that the value and the utility of presumptions must diminish in the presence of superior evidence capable of being established. Cochran J. summed this up quite poetically in Stumpf v. Montgomery where he observed 'presumptions... may be looked on as the bats of law, flitting in the twilight, but disappearing in the sunshine of facts.'52 As mentioned above, the legislature itself has abandoned the said presumption in various jurisdictions across the world, but at the same time, the presumption remains stringently enforced in various other countries, including India.

In a democracy, changing the legislative policy is the prerogative of the elected. Keeping within the bounds of the legislative policy, the author has chalked out a certain steps which need to be taken in order to make DNA evidence more receptive in India. DNA evidence can incontrovertibly establish the paternity of the child. Specific amendments are required to the Act as well as to the Criminal Procedure Code, 1973 ("the Code") to make the said statutes amenable to DNA testimony. Section 112 of the Act should be amended to incorporate DNA evidence along with evidence of non-access as a means to prove or disprove paternity, and the legitimacy presumption must be made rebuttable.53 Section 4554 of the Act should be suitably amended to explicitly include DNA evidence. Section 293(4)55 and of the Code should also be amended to include "DNA experts" in the list of experts. The courts should be given the discretion to require a party to the proceedings to submit to a DNA test, and should take into account the welfare of the child. The protection of Article 20(3)56 and Article 21 of the Constitution should not defeat a court order in paternity proceedings that a person should undergo a blood or DNA test.57 The observation of the Indian Supreme Court58 regarding the veracity of DNA evidence must be imported in paternity actions. Strong evidence of multiple access59 can be treated as a condition precedent to challenge paternity. The degree of evidence may be the same as required to establish a prima facie60 case of adultery while seeking divorce under Section 13(1)(i)61 of the Hindu Marriage Act 1955. This will ensure that the provision is not misused and allow for a much needed better balance.


* BLS LLB, University of Mumbai, India. I would specifically like to thank Prof. Dr. Gerhard Dannemann for guiding me and and helping me in editing the article. I would also like to thank Ms. Shweta Vasani for her inputs and suggestions. Any error though, must be attributed to me.

1 Motilal Padmapatar v State of Uttar Pradesh AIR 1979 SC 621; 118 ITR 326.

2 A rule of 'conclusive presumption' goes much beyond presuming a certain fact. Such a rule conclusively establishes a certain fact which cannot be challenged or disproved on any ground.

3 See Gautam Kundu v State of West Bengal, AIR 1993 SC 2295, Smt. Dukhtar Jahan v Mohammad Farooq AIR 1987 SC 1049. See also Brinkley v King, 701 A.2d 176, 180 (Pa. 1997), Stevens v Moss, 98 Eng Rep 1257 (KB 1777), at 1258.

4 Nothing odious or dishonourable will be presumed by the law.

5 He is the father whom the marriage indicates.

6 The presumption is always in favour of legitimacy and filiations cannot be proved.

7 Izhar Ahmed v Union of India, AIR 1962 SC 1052.

8 W.M. Best, 'A treatise on presumptions of law and fact, with the theory and rules of presumptive or circumstantial proof in criminal cases.' See also United States v Provident Trust Co 291 U.S. 272 (1934), Vlandis v Kline 412 U.S. 441, 446 (1973).

9 Such are the circumstances wherein the mother and/or the child want to live with the biological father and want to be supported by him alone instead of the putative father.

10 "Multiple access" may be interpreted as "opportunity of having sexual intercourse with more than one person".

11 A presumption of fact is a logical inference of a particular fact, drawn from another fact which has already been established; presumptions of fact are therefore always rebuttable. Conversely, a presumption of law is either rebuttable or irrebuttable.

12 Section 4: "May presume" - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
"Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
"Conclusive proof" - Where one fact is declared by this Act 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.

13 Section 112 of the Act: 'Birth during marriage, conclusive proof of legitimacy - 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' (my emphasis).

14 Non-access has been interpreted by the judiciary across the world to mean "an opportunity of having sexual intercourse". See Krishnappa v Venkatappa, AIR 1943 Mad 632.

15 Banarasi Dass v Teeku Datta, 2005(4) SCC 449, Amarjeet Kaur v Harbhajan Singh, 2003(10) SCC 228, Ajaya Kumar Nayak v State of Orissa, 1995 CrLJ 82 (para. 6), Venkateswarlu v Venkatnarayan AIR 1954 SC 176, Chandramathi v Pazhetti Balan AIR 1982 Ker. 68, Bhagwan Baksh v Mahesh Baksh AIR 1935 PC 199, Tushar Roy v Sukla Roy 1993 Cri. Lj. 1659.

16 Deoxyribo Nucleic Acid (DNA) science establishes that the pattern of chemical signals i.e. the genetic structure which may be discovered with the DNA molecule in the cells of each individual, is unique and different in every individual. As such, the chemical structure of the DNA in the cells of each individual is the sole determining factor to identify one separately from another, except in the case of genetically identical twins.

17 Kamti Devi v Poshi Ram AIR 2001 SC 2226.

18 Ibid.

19 In Keshavananda Bharati v The State of Kerala, AIR 1973 SC 1461, the then Chief Justice of India Justice S.M. Sikri observed that Separation of Powers comes within the purview of the "Basic Structure" of the Indian Constitution and therefore cannot be deviated from. See also Bommai SR v Union of India, (1994) 3 SCC 1, State of Bihar v Bal Mukund Sah, (2000) 4 SCC (para 32).

20 Sabur Hossain Biwas v State of West Bengal And Ors. 2008 Cri LJ 1183.

21 S. 125 of the Criminal Procedure Code, 1973 mandates that a person must inter-alia maintain (support) his legitimate child as also his illegitimate child.

22 Art 15(3): "Nothing in this article shall prevent the State from making any special provision for women and children."

23 Art 39(f): "The State shall in particular, direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment."

24 Art 37: "Application of the principles contained in this Part.- The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws."

25 Article 21:'No person shall be deprived of his life or personal liberty except according to the procedure established by law.' Right to life has been interpreted by the Supreme Court of India to mean a lot more than a mere right to live. Right to environment, right to legitimate defence, right to privacy etc have been read into Article 21 of the Constitution.

26 The Black's Law Dictionary, 8th Edition, defines 'due process' as, 'The Conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.' - Also termed as due process of law; due course or law.

27 I.C. Golaknath and Ors. v State of Punjab and Ors AIR 1967 SC 1643.

28 AIR 1978 SC 597.

29 Bailey v Alabama 219 US 219 (1911), Manley v Georgia 279 US 1 (1929), Western & Atlantic RR v. Henderson 279 US 639 (1929), Carella v California 491 US 263 (1989), Stanley v Illinois 405 US 465 1972.

30 Article 14 of the Constitution of India provides for equality before the law and the equal protection of the laws and the same has been interpreted to preclude arbitrariness and unreasonable classification. See Budhan Chowdhry v State of Bihar, 1955 (1) SCR 1045 (1049), State of W.B. v Anwar Ali Sarkar, AIR 1952 SC 75.

31 Malpe Vishwanath Acharya v State of Maharashtra AIR 1998 SC 602, Motor General Traders v State of Andhra Pradesh AIR 1984 SC 12 at page 130.

32 "Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself" Broom's Legal Maxim (1939 Edition, page 97).

33 Article 51-A (h): "It shall be the duty of every citizen of India 'to develop the scientific temper, humanism and the spirit of inquiry and reform."

34 491 U.S. 110 (1989).

35 639 NE 2d 725, 730 (Mass App Ct 1994). See also CC v AB 550 NE 2d 365 (Mass 1990).

36 See Robert LA v Sharon, AR 185 AD 2d 977 (NY App. Div. 1992) and Queal v Queal, 179 AD2d 1070 (NY App. Div. 1992) Vito L. v Filomena L., 172 A.D.2d 648, 651 (N.Y. App. Div. 1991, Mancinelli v Mancinelli, 203 A.D.2d 634 (N.Y. App. Div. 1994), Ettore I. v Angela D., 127 A.D.2d 6 (N.Y. App. Div. 1987), Richard B. v Sandra B., 209 A.D.2d 139 N.Y. App. Div. 1995.

37 Miscovich v Miscovich (1997) 455 Pa. Super. 437.

38 Barnes v Jeudevine 718 N.W.2d 311 (Mich. 2006).

39 (2000) 77 Cal. App.4th 1198. Court of Appeal, Fourth District, Division 3. See also Ex parte Madalina, 174 Cal. 693, 164 P. 348 [(1917)], Vincent B v Joan R., 126 Cal. App.3d [619] at 623, Frankovich v Frankovich, 459 P.2d 583.

40 817 P.2d 37, 40 (Ariz. Ct. App. 1991).

41 (1924) AC 687.

42 In some commonwealth countries, Russell v Russell was abolished by legislation, as for example in sec. 33 of the West Australia Matrimonial Causes and Personal Status Code 1948.

43 [1968] 1 All ER 20; See also Blyth v Blyth [1966] AC 643, BRB v JB [1968] 2 All ER 1023.

44 (1972) AC 24.

45 H & A (Children), Re [2002] EWCA Civ. 383

46 1904 1 I.R. 434, at 440-441

47 (2009) SGHC 70

48 S 114 of the Singapore Evidence Act corresponds with S. 112 of the Indian Evidence Act.

49 Siris Chandra Nandy v Rakhalananda, AIR 1941 PC 16, page 18; Hales v Kerr, (1908) 2 KB 601 and Butterly Co. v New Hacknall Colliery Co., 1909 1 Ch 37.

50 Object and Reasons of the Indian Evidence Act, 1872.

51 BRB v. JB, [1968] 2 All ER 1023.

52 (1924) 101 OKL 256 Pac 58, as quoted in G. Vasu v Syed Yaseen Sifuddin Quadri, AIR 1987 AP 139.

53 See Malimath Committee Report, 'Report of the Committee on Reforms of the Criminal Justice System' (March 2003).

54 Section 45: 'Opinions of experts: When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.'

55 Section 293 (4) applies to the following Government scientific experts, namely:
(a) Any Chemical Examiner or Assistant Chemical Examiner to Government; (b) The Chief Inspector of Explosives; (c) The Director of the Finger Print Bureau; (d) The Director, Haffkeine Institute, Bombay; (e) The Director [Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State forensic Science Laboratory]; (f) The Serologist to the Government.

56 Article 20(3): "No person accused of any offence shall be compelled to be a witness against himself."

57 This is required as "right to privacy" has been recognised by the Supreme Court of India to be within the ambit of Article 21 of the Constitution. See Kharak Singh v State of U.P AIR 1963 SC 1295: (1963) 2 Cri LJ 329, Govind v State of M.P (1975) 2 SCC 148: 1975 SCC (Cri) 468, R. Rajagopal v State of Tamilnadu (1994) 6 SCC 632.

58 Sharda v Dharmpal 2003 4 SCC 493. The Supreme Court observed that the refusal by a party to give a sample of blood for conducting a DNA test will draw a strong adverse inference against that party. See also Pantangi Balarama Venkata Ganesh v State of AP 2003 CrLJ (AP) 4508, 4518, para. 8.

59 Supra Note "10".

60 Mere suspicion or general evidence of ill repute will not prove adultery- See D. Handerson v D. Henderson, AIR 1970 Mad 104, but circumstantial evidence and strong probabilities corroborating each other are valid grounds - See Mani Shankar v Radha Devi, AIR 1992 Raj 33; Somsekharan Nair v Thankamma, AIR 1988 Ker 308.

61 Section 13 - Divorce: (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse.

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