Presumption:

The term 'presumption' in its largest and most comprehensive signification, may be defined, where in the absence of actual certainty of the truth or falsehood of a fact or proposition, an inference affirmative or dis-affirmative of that truth or ft is drawn by a process of probable reasoning from something which is taken for It is, however, rarely employed in jurisprudence in this extended sense. Like “presumption it has there obtained a restricted legal signification, and is used to of an inference, affirmative or dis-affirmative, of the existence of some fact, drawn by a judicial tribunal, by a process of probable reasoning, from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumptions are drawn from the course of nature for instance, that night will follow day, the seasons follow each other, death ensues from a mortal wound, and the like; or from the course of human affairs from a familiarly with the ordinary springs of human action, from the usages of society, domestic relationship and transactions in business [Norton, p 97; see post, s 114].J Shortly speaking, a presume is an inference of fact drawn from other known or proved facts. It is a rule of under which courts are authorized to draw a particular inference from a particular fact unless and until the truth of such inference is disproved by other evidence.

Divisions of Presumption:
Presumption according to English test-written are:
(a) Presumptions of fact or natural presumption:
(b) Presumptions of law (rebuttable and irrebuttable); and
(c) Mixed presumptions.

Conclusive presumption :
Presumption of fact or natural presumptions are inferences which are natural drawn from the experience and observation of the course of nature, the constitution of human mind, the springs of human action, the usages and habits of society. Those presumptions are generally rebuttable.

Conclusive presumption :
Conclusive presumptions or irrebuttable presumptions are interences which the law makes so peremptorily that it will not allow them to be overturned by any contrary however strong. Fictions of law are closely allied to irrebuttable presumptions of the law, for the advancement of justice, assumes as fact, and will not allow to be something which is false, but not impossible. On the whole, modern courts of justice are slow to recognize presumptions as irrebuttable, and are disposed rather to restrict than extend number. By an arbitrary rule to preclude a party from adducing evidence, which if I would compel a decision in his favour, is an act which can only be justified by the expediency and soundest policy, and some presumptions of this class ought never found their way into it.
Of the section points at irrebuttable presumptions of law and the number of nations are very few. Irrebuttable presumptions of law are almost the same as indisputable propositions of law, rule that nothing is an offence which is done by a child under seven or the presumption against ignorance of law. There is a tendency now to regard such irrebuttable presumptions of law as also rebuttable, eg. Presumption that a child born in wedlock is legitimate was formerly held as irrebuttable, but in now regarded as rebuttable. Section 112.

Conclusive proof: An artificial probative effect is given by the law to certain facts, and no evidence is allowed to be produced with a view to combating that effect. When the law says that a particular kind of evidence would be conclusive, that fact can be proved either by that a evidence or by some other evidence which the court permits or requires. When such other evidence is adduced, it would be open to the court to consider whether upon that evidence the fact exists or not. On the other hand when evidence which is made conclusive is adduced the court has no option but to hold that the fact exists. There is no difference between conclusive proof and conclusive evidence. These cases generally occur when it is against the policy of government or the interest of society, that a matter should be further open to dispute. Thus judgments of certain courts are conclusive proof of the matters stated in them section 41. A birth during a valid marriage is with certain exceptions conclusive proof of legitimacy section 112. In instances certificates or other such documents are by special Acts, made conclusive evidence of the facts stated in them companies Act, 1956, section 132. Succession Act, 1925 section 181 Christian Marriage Act, 1872. Certificate of registration given by the register in respect of company is conclusive evidence that each subscriber wrote opposite his name the number of shares he took. The words conclusive evidence imports that the certificate of the public analyst need not be proed by formal evidence, but the presumption arising out of conclusive of what happened before the presiding officer of the court (Ratanlal v Nathulan A 1961 MP 108).

Section 41 (Relevancy of certain judgments in probate etc, jurisdiction)
A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or solvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be, entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof -

That any legal character which it confers accrued at the time when such Judgment, order or decree came into operation that any legal character which it declares any such person to be entitled, accrued to that person at the time when such judgment order or decree declares it to have accrued to that person ;that any legal character which it takes away from any such person ceased at the time from which judgment; order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from J which such judgment, order or decree declares that it had been or should be his property.

Principles Of Section 41: This section consists of two parts. The first part makes certain judgments relevant. The second part makes the judgments conclusive evidence in certain matters. This section admits judgment in rem as evidence in all subsequent suits, where the existence of the right is in issue whether between the same parties or not. Section 41 clearly deals with what are known as judgment in rem. A judgment in rem is conclusive against the word as to the itatus of the parties. A judgment in persona is conclusive only between parties or privies. The words 'competent Court are not confined to the Courts of this country but mean the Courts of any country, competent to pass such a judgment as is referred to in the section. According to the first part only judgment of a competent Court in the exercise of probate matrimonial, admiralty or insolvency jurisdiction is re event under the section. According to the second part such a judgment is conclusive proof only for showing
(a) that judgment has conferred a legal character on a person, or
(b) that it has declared that a person had such legal character, or
(c) that it has declared that any legal character of a person which subsisted had ceased to exists. The order of a probate Court is conclusive not only against the parties to the proceeding but against all persons and all Courts. An order adjudicating a person insolvent is a judgment in rem and is conclusive against the whole world but as regards status only. Admiralty jurisdiction is conferred on the- High Court Division by letters patent and on Civil Courts of unlimited jurisdiction by Court of Admiralty Acts, 1890.

Hazi Waziullah Vs. ADC 41 DLR (AD) 97— Relevant means and relates to admissibility only— Evidentially value of a judgment which is relevant is different from the question whether it is admissible in evidence.
Mst. Muni Vs. Habib Khan 8 DLR 25 (WP )—Civil suit by the wife for declaration that marriage between parties had been repudiated. Criminal proceeding started by husband under sec. 498, P. C. Wife's application for stay of criminal case till the decision of the Civil Suit not maintainable—Civil Court not a Court of matrimonial jurisdiction, within meaning of section 41. Judgment in-rem defined.
Raj Kishore Prasad Narain Singh Vs. Promoda Behari Singh AIR 1982 Patna 182—Probate is not decree—Unless probate is revoked by Court granting it, no evidence can be allowed in subsequent suit to prove that will was forgery.

Judgment in rem :
The only definition of a judgment m rem which can be properly given is that it is a judgment which binds all men, and not only the parties to the suit in which it was passed and their privies; and that it belongs to positive law is say what judgments are to be judgments in rem, whether for reasons of international comity or of domestic expediency. The terms in rern or in person name have never been clearly defined in reference to our own or any other system. (Phipson, Evidence, 7th Edn. 395).
The term in rem was used in Roman Law in connection with actio but not in connection with jus. An actio in rem created a right good against all mankind, and its effect was to conclude the whole community, while an actio in personam went upon the rights against , or over the individual only and its effect was to conclude the individual only.
This section restricts the scope of judgments in rem to the decisions of Courts in the exercise of their Probate, Matrimonial, Admiralty, or Insolvency jurisdiction only and hence decisions of
1

Is a Judgment Conclusive:
A judgment in rem is not conclusive if it relates which need not have been controverted or which was not material or which aterally into question or which was only incidentally cognizable. The principle |ia order to be a judgment in rem binding on the world, there must be a finding which is not only the foundation of the judgment but necessary for-it legitimacy, adoption, etc., are not judgment in rem. A judgment in rem can be impeached on the ground that the Court had no jurisdiction or that the judgment was obtained by fraud or collusion (Section 44), or that it was not given on merits or that it was interlocutory and not final as required by Section 41.
A judgment in rem is conclusive only as regards the status but not as regards the grounds on which it is based. Unlike the English Law, it appears that a judgment-in rem is conclusive in criminal proceedings also.

Construction of Section 41:

Section 41 of the Evidence Act consists of two parts. The first part makes certain judgments relevant. The second part makes the judgments conclusive evidence of certain matters.
Judgment is conclusive proof only for showing,
(a) that a judgment has conferred a legal character on a person, or
(b) that it has declared that a person had such legal character, or
(c) that it has declared that any legal character of a person which subsisted had ceased to exist.

Final judgment:
The word ‘final’ is used to distinguish from interlocutor)' and does not mean non-appealable.

Competent Court:
It includes a foreign Court. The expression means the Court of any country which is competent to pass a judgment in rein. However, judgment of a foreign Court cannot affect the assets situated outside the country which passes the judgment.
The judgment has to be of a Court which has jurisdiction over the parties and the subject-matter. Only the judgment of such Court would be conclusive proof of the legal character it confers or takes away.

Judgment of probate Courts:
The grant of a probate is the .method prescribed by law for establishing a will. The Courts exercise testamentary jurisdiction under succession Act 1925. Under Section 264 and 300 of the said Act, the District Judge and the High Court enjoy a concurrent jurisdiction to grant and revoke probates and letters of administration. Probate can be granted only to the executor appointed in the will by the testator (Section 222, Succession Act). The grant of probate is conclusive proof of the title of the executors and the genuineness of the will admitted to probate.

Legal Character:
In reference to a judgment of a Probate Court legal character means the status of an executor or administrator only. The legal character of an executor is declared, and not conferred, while that of, an administrator is conferred and not declared by the judgment of a Probate Court granting probate to an executor and letters of administration to an administrator. A judgment in probate proceedings regarding the genuineness of will or its due execution is a judgment in rem and is conclusive. Section 41 does not apply to the refusal of a probate.

UNDER THE PROBATE JURISDICTION OF THE COURT : A probate is granted in favor of the will of a testator, or in case of an intestate succession, a Letter of Administration is granted in favour of a person. Immediately upon such granting, the Executor and the Administrator attain their respective status as such and the related estates vest in them for the specific purposes to which their appointments relate.

Under The Matrimonial jurisdiction: when a marriage is dissolved, each of the parties of the marriage becomes a single male or a single male person forthwith, and he or she goes in the whole world as such until another marriage (provided, however, that in case of the husband he had no other wife at the time of the dissolution of the marriage). In our country, the Matrimonial jurisdiction is now vested in the Family Courts under the Family Courts Ordinance, 1985. Section 5 of the Ordinance provides-
Subject to the provisions of the Muslim Family Laws Ordinance. 1961 (VIII of 1961), a Family court shall have exclusive jurisdiction to entertain, try and dispose of suits relating to, or arising out of all or any of the following matters, namely- a) dissolution of Marriage; b) restitution of conjugal rights; c) dower; d) maintenance; e) guardianship and custody of children. f) But the judgments of the Family courts relating to the matters under Section 5 of the Family courts Ordinance are not all judgments in rem ;Some of them are judgments in personam. For instance, a judgment in a suit for restitution of conjugal rights or for maintenance is a judgment in personam wherein the bindings and liabilities are limited between the parties only (i.e. between husband and wife only), and the rights there under can be enforced only by one of the parties against the other. Similarly, a judgment allowing all amount of dower can be enforced only by the wife, and that, her. Claim is good only against the husband or his property and against on one else. This is more so because the husband or the wife does not enjoy these rights as a member of the society, rather as a spouse of an individual person; and these rights are not in the nature of a legal character (which means a status), though these are certain legal to which a spouse is entitled under the respective circumstances.

A judgment in a suit for jactitation would also not be a judgment in rem; for when such a judgment decides and declares that the woman is not the wife of the plaintiff (who brought the suit for jctitation against that woman), the scope of the judgment extends on further. It does not declare the woman to be a single famale, because, though her marriage with the plaintiff is not proved in the suit, the possible existence of her marriage wife any other man is not disproved or negatived by the judgment. Therefore, she attains on legal character or status by such a judgment. But upon disolution of marriage through the judgment of the Family Court, the legal character of a wife is altered.-She attains a different status,-that she is new a single tamale.

Admiralty jurisdiction under section 41: Admiralty jurisdiction is exclusively vested in the High Court Division of the Supreme Court.
Division of the Supreme Court of Bangladesh in the following words- The jurisdiction of this court is not derived from the letters Patent of 1852 or that of 1865, but from the Colonial Courts of Admiralty Act (India) of 1891 of England. The latter Act is not on our statute book but it is administered in view of the combined operative of sub-section (2) of section 2 of the Colonial Courts of Admiralty Act, 1890 of the British Parliament and the Colonial Courts of Admiralty Act (India) , the later Act being revised by the Bangladesh Laws (Revision and Declaration) Act, 1973 (Act VIII of 1973) is now on our statute book. It is true that if the revised Court of Admiralty Act of 1891 is read in isolation then it would not give any idea as to the nature and extent of the Admiralty jurisdiction of this court but it is to be read in its historical perspective. Under the Act of 1891 the High Court Division of this court was declared as the Court of Admiralty. This court exercises the jurisdiction as the High Court of England exercised in 1890 under the Admiralty curt Act of 1861.
Mr. M. Hafizuddin also referred me to the decision in the case of kings Shipping Trading Co. vs. M/s. L.S. Line, 38 DLR, 30 in Support of his contention that Court exercises its Admiralty jurisdiction derived from Admiralty Act, 1861 and does not exercise the same jurisdiction as is being exercised by the “Admiralty curt in England under Administration of justice Act, 1956 passed by the British Parliament. In delivering the judgment of the report Sultan Hossain Khan, J. observed:
The Admiralty Court f England exercises jurisdiction of the basis of statule laws. The Court similarly exercises jurisdiction as has been given to under section 6 of the Act of 1861 by virtue of the provision of section 2 (2) of Colonial court Admiralty Act. 1890 and as such, Administration of justice Act, 1956 is not applicable in Bangladesh.

Insolvency Jurisdiction under section 41 :
Under the Insolvency Jurisdiction when a person is adjudged insolvent, his status as such is determined net only in rotation to his creditors, but also in rotation to the society at large. His assets and properly, wherever situated, vest in the official Assignee. He is subjected to general disabilities due to which he cannot obtain any financial assistance from any Bank or Financial Institution, nor can he obtain a Trade License, Industrial License, etc, for doing any business. But when the insolvent is discharged, his status (legal character) is changed back to an ordinary citizen, and ho is free again to take up business enterprises like any other entrepreneur. Discharge is granted by the Curt upon application from the insolvent under Certain Specified and proscribed circumstances. (Vide Insolvency Act). A person after being adjudged Insolvent may also apply for Composition, which means that, all the creditors of the insolvent are offered a scheme of arrangement in which they receive each a notion of their debts in full satisfaction of their dues form the insolvent, their Debtor. The Court may, in its discretion, allow and approve of the Composition, if such scheme or arrangement is in the interest of the general body of creditors and gives reasonable security for payment of at Arfin, his Lordship, In the matter of B Bramble, Insolvent Debtor, 20 DLR. Kari, 21. Upon Such Composition, the Debtor Insolvent gets released of the disabilities and regains his status as an ordinary citizen free to sterns mercantile life afresh. (Note, in Place of four annas in a Rupee’we may read one furth of a Take or twenty five paisa in a Taka). Legal characters. This expression must be narrowly construed. It means something equivalent to status. The legal character assigned to a person announces to the world what the legal status of a person in question is, i.e.,weather is an executor of a will r an insolvent or a divorcee.

Foreign Judgments declaring status:

Foreign judgments declaring status of persons domiciled within their territories are by the comity of nations treated in Bangladesh as analogous to judgments in rem. [1]
Judgment by compromise:
It is not a judgment in rem and hence in no bar to a subsequent suit. [2]
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.

Section 112 :
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

Principe of the Section 112: The section is based on the principle that when a particular relationship, such a marriage is shown to exist, then its continuance must prima facie be presumed. Under the section the fact that any person was born- a) during the continuance of a valid marriage between his mother and any man, or b) 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 the parties had no access to each other at any time when he could have been begotten.
Evidence that a child is born during wedlock is sufficient to establish its legitimacy, and shifts the burden of proof to the party, seeking to establish the contrary.

The presumption under this section is a conclusive presumption of law which can be displaced only by proof off non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access cannot existence and non-existence of opportunities for marital intercourse. Non-access can be proved by evidence direct or circumstantial though the proof of non-access must be clear and satisfactory as the presumption of legitimacy is highly favoured by law.
Sections 41. 112 and 113 are the only sections which deal with matters which are to be regarded as conclusive proof. No rule of the kind can be based on considerations of evidence, because enquiry is altogether excluded. The basis of the rule in the first case (s. 112) seems to be a notice that it is undesirable to enquire into the paternity of a child whose parents have assess to each other. This section refers to the point of time of the birth of the child as the deciding factor and not to the time of conception of that child; the latter point of time has to be considered only to see whether the husband has no access to the mother.

1. During the continuance of a valid marriage between his mother and any man: 2. The presumption as to paternity in this section only arises in connection with the offspring of a married couple. The section applies to the legitimacy of the children of a married person only. On the birth of a child during marriage the children of a marred person only. On the birth of a child during marriage the presumption of legitimacy is conclusive, no matter how soon the birth occurs after the marriage. There is presumption of valid marriage from the fact of living together as husband and wife for continuous and long period and sons born to them from such marriage are legal heirs over the properly of the husband.
Even children born with only a gestation period of six months have been known to survive and live. Where a child was born eight months after date of marriage there could be no doubt that she could very well be the child of the father. Observing section 120 with this section it is clear that there is no prohibition to the parents of a child from deposing whether or not they had at any time, when the child would have been begotten, access to one another. In a case for maintenance, the father denied paternity to his second daughter. Evidence showed that his wife was pregnant when she left the house of her husband and there was no evidence of her illicit relations with anyone. He had admitted paternity in earlier petition. It was held that the daughter was entitled to maintenance.

Paternity of child-Blood test:

Section 112 requires the party disputing the paternity to prove non-access in order to dispel the presumption. Access and non-access mean the existence or non-existence of opportunities for sexual con-tact; it does not mean actual cohabitation. It is a reputable presumption of law under s. 112 that a child born during the lawful wedlock is legitimate, and the access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities. Thus following is the position as to permissibility of blood test to prove paternity: (1) That courts can not order blood test as a matter of course. (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test can not be entertained. (3) There must be a strong prima face case in that the husband must establish non-access in order to dispel the presumption arising under section 112
(4) the court must carefully examine as to what would be the consequence of ordering the blood test , whether it will have the effect of branding a child as a bastard and the mother as an unchaste women .[3]
(5) no one can be compelled to give simple blood for analysis .
In case of non –access , the court can direct the respondent wife to give blood sample to determine the paternity of the chold born to her and in case of her refusal from doing so, the court can draw adverse inference against her.[4]

3. Within two hundred and eighty days after dissolution of marriage ; the mother remaining unmarried:
The section does not lay down a maximum period of gestation, and therefore does not bar the proof of the legitimacy of a child born more than two hundred and eighty days after dissolution of marriage, the effect of the section being merely that no presumption in favor of legitimacy is raised, and the question must be decided simply upon the evidence for and against legitimacy. A Person born within two hundred and eighty days after the death of his father is presumably his legitimate son. when a person claims, under this section, to be the son of deceased personam, he must prove that he was born within two hundred and eighty days after the death of his father.[5]

Proof of Non- access:
The proof of the non- access must be very strong and beyond reasonable doubt, that in fact husband and wife had no access to be each other and once the access is proved, it shall not be allowed to be rebutted again and the presumption becomes irrefutable. Merely because it has been proved that the husband at the probable time of conception was living with a kept or they were living separately is not sufficient rebuttal. And again because it is shown that apart from her own husband, the woman had sexual intercourse with other men also, the legitimacy of a child born during the continuance of a valid marriage is not rebutted. Alderson B. summed up in cape v. cope, I M & R 269: If once you are satisfied that the husband had sexual intercourse with his wife, the presumption legitimacy is not to be rebutted by being shown that other men had also sexual intercourse with the woman. The law will not, under such circumstances, allow a balance of evidence as to who is most likely to have been the father.

Access or non-access does mean the evidence of actual sexual intercourse between the couple, what is required is the proof of the opportunities of sexual intercourse. Nobody can prove nor it is desired to be proved that the husband was seen on the bed of the wife in the compromising position at the time of probable conception. Rather it is difficult to lay down any definite precise date or time of conception. Utmost what can be shown is the period within which the conception might have taken place and that during that period the husband and wife had on opportunity for sexual intercourse for one or other convincing reason, though in some cases access was taken to mean actual sexual intercourse, Jagannalha Mudali v. Chinnaswami chetti, 136 IC 36; Sanual v. Annamal, 149 IC 100; Uinaruddin v. Ghulam Muhammad. 160 IC 751. But the privy council disagreed with the view taken in above cases Karapayya Seruai v. Mayandi, 1936, PC 49 and in view of the Privy council for access or non-access, the proof of the existence of the actual sexual intercourse is not necessary. The non-access between the wife and husband may be proved by the absence of the opportunity of sexual, intercourse between them. For example, if it is shown that at the probable time of conception of the child the husband was impotent, physically unfit for sexual intercourse; incompetent due to immaturity of age or was absent or if present, under the circumstances it was impossible to have sexual intercourse with the wife, there is sufficient rebuttal of the resumption.

The presumption of legitimacy is very strong and though non-access may be proved by circumstantial evidence, but the evidence in rebuttal must be clear and satisfactory, Venkateswarlu v. Venkatanarayana,( A 1954 SC 175. )

English rule of legitimacy And section 112 :

The English rule of legitimacy of the child is that a child born during the wedlock should be treated as legitimate son of the husband of the mother unless non-access of the husband to the mother is shown as to the time of probable conception. And the same rule with regard to legitimacy of a child has been incorporated here.

If two facts are shown, there is a conclusive proof that the child is a legitimate one: i) The first fact to be proved is that there was a valid marriage between the mother and the alleged father of the child; and ii) Secondly, that the child was born during the continuance of the marriage of within two hundred and eight days after the dissolution of the marriage and in this case mother remaining unmarried. This conclusive presumption can rebutted only by the proof 0f non-access between the husband and wife atthe time of conception and the burden of proving non-access is on the person who claims the child illegitimate. The evidence to rebut the presumption must be strong, distinct, clear, satisfactory and conclusive.

Foundation of presumption under section 112: The foundation of presumption under this section is the valid marriage between the mother of the child and the alleged father of the child. So first a valid marriage between the couple must be shown. If the marriage is void, section 112 will not apply. So the presumption arising out of this section is inapplicable to a child born of a fasid (irregular) marriage to a Muhammadan lady., Validity of the marriage, birth during the marriage or within 280 days of the dissolution of the marriage and access of the father, all the three must be there, then only the court shall take the legitimacy conclusively proved. A valid marriage may be proved either by direct evidence or by the presumptive evidence.

Proof of Paternity not the maternity of a child:

The section is of no value and has no application where the question to be decided is the maternity of the child and not the paternity of the child as the legitimacy is determined by the ascertainment of the father, Nand Ktshwar Bux, v. Gopal Bux, 188 IC 1. In all cases where the legitimacy of a person is in question, this must be shown that he took birth out of the body of a particular woman, otherwise it is difficult to ascertain the paternity.

Legitimacy of Child-Presumption: Parties having no access to each other at any time, when child could have been conceived. Presumption regarding legitimacy is rebutted.[6]
Section 112 and Section 120.- On reading Section 120 with this section it is clear that there is no prohibition to the parents of a child would have been begotten, access to one anther.

In a case a child was born on 13-5-1949 there was divorce between the parents. There was no satisfactory evidence to establish that the husband did not have access to wife before the date of divorce. It was held that the child was legitimate. [7]

Concept of Valid marriage:
The section cannot be applicable in any way to a marriage which is neither void ab initio (batil), nor absolutely void, but is fasid, i.e. irregular, inasmuch as the section is based on a division of marriages merely into two categories and cannot be applicable to the Mohammden Law which divided marriages into three categories. In any case, if Section 112 can be held applicable,the word “valid” in the section must be construed as “flawless” so that the presumption would not apply to fasid marriage.[8] The Parentage of child-Blood test to determine the same:

It could have reason to believe that the application test is of a fishing nature or designed for some ulterior motive it would be justified in acceding to such a prayer.

Application under Section 488, Criminal Procedure Code:
The presumption under this section arises also in proceedings under section 488, of the code of criminal procedure. Thus, in an application by a woman against her paramour for the maintenance of her child, where her husband is living and the marriage has not been dissolved, she has to prove the non-access of her husband with her during the relevant period, like by his being in jail, physical ouster by a paramour or non-access due to distant residence the presumption of legitimacy would get rebutted.

Conclusive proof under section 41. 112 : It is defined by section 4 of the Evidence Act. Sections 41, 112 and 113 are the only provisions in the Evidence Act dealing with matters which are regarded as conclusive proof. The presumption under section 112 is a conclusive presumption of law which can be displaced only by proof of non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child.
Allegation by husband that wife begot child through another man. Husband not proving non access-constitutes proof that child was legitimate, evidence led by husband to disprove legitimacy by showing that he did not in fact have intercourse with wife.[9]

Hindu Marriage Act, Section 13.-Petition by husband for divorce on ground of wife’s adultery, standard of proof of adultery indicated-Blood grouping test to determine disputed paternity of child: (a) Circumstantial evidence, (b) Evidence of non-access and birth of children, (c) Contracting Venereal disease, (d) Confessions and admissions.

Rebuttal of presuption: It is not necessary to prove non-access by positive evidence as it is a negative facet, it is enough if the evidence is such as to make the court believe it to be probable that there was no access, during the said period of time, be it because the husband is entirely prevented from having access to his wife, or for any other reason. Even if it is proved that his wife was living in adultery, it is insufficient to prove non-access.

Provisions of Muslim law relating to child legitimacy:

The rule of the Muslim Law on the subject is repealed by this section. Unlike the rule enacted by this section a child born within 6 months of marriage is, under the Muslim Law, presumed to be illegitimate and one born within 2 years after the dissolution of the marriage by death or divorce, is presumed to legitimate (Heday, Chapter XIII). thus the child born to Muhammadan within six months of the marriage is, in the absence of evidence of non-access to be deemed to be legitimate under Section 112, though according to the Muslim Law such child would be illegitimate. Justice Masud Ahmed has held that the rule of Muslim law regarding legitimacy is, not a mere rule of evidence, because under it, if a child is born six months after the marriage of its parents, or within two years of the dissolution of the marriage, by death or divorce, it is considered to be the legitimate child of its father, unlike the rule of evidence in Section 112 of the Evidence Act, under which only a presumption of legitimacy can be raised under certain circumstances. Under this rule of Muslim Law there is no question of such a presumption being raised and the child born after six months of the date of marriage of its parents, is considered to be a legitimate child. That rule adopts the period of Conception as a turning point of legitimacy unlike the English Law which does not concern itself with conception but considers a child legitimate who born of parents married before the time of its birth. This peculiarity of the English Law, as had been remarked by Mr. Justice Mahmood, in Mohammad Allahad khan v. Mohamad Ismail, has been imported in this country by Section 112 of the Evidence Act, as a rule of evidence only.

No confliction between Muslim law and section -112 of Evidence Act as to legitimacy of child :

Under section 112 , any person born during the continuance of a Valid marriage or within 280 days after the dissolution of marriage shall be conclusive proof that he is legitimate , condition is that is that he is legitimate condition is that the is legitimate condition is that the mother should remain unmarried during wedlock . their presumption is conclusive presumption .it can be rebutted by the words no access used bin be rebutted by the words no access used in this section .so burden of proof lies to the person who claims that that he is not

No presumption No presumption

280 Days

Date of dissolution

Date of Valid Marriage During this time the birth of a Child is legitimate.

Condition may arise as to the legitimacy of child between the Muslim Personal law and 112 thus we see an anomalous situation as -

“A woman was married to a man X, after a year of married life she was divorced as X and on the expiry of 3rd months of the divorce she got married to Y, and child was born after only one week following her marriage to Y. here in view of the rule of section 112 , the child has to be treated as legitimate child of Y.”
Here most of the writers say section 112 validates that child to the newly married spouse.
Here lies the problem. This problem can be solved by a single word “valid”, marriage. it is to be stated that before applying section -112 it must have to pass the test of validity of marriage .if marriage is not valid this section has no applicability . in the above example women got married with Y concealing her pregnancy is not valid marriage and this section 112 are undisputed on their own footing.

a) It child is born before 6 months it is illegitimate according to Muslim law. Section 112 is not contradictory became it sets forth the condition of valid marriage .so both law shall declare the child illegitimate.
b)
(b) birth within 280 days of the dissolution of marriage is legitimate according to Muslim law birth within 2 years ( safi ) in legitimate both the laws do not expect the illegitimacy .

c) In modern time the legitimacy of child can be tested by MDNA –Micro –DNA Test.
d) Muslim law does not recognize Zina or adultery .Section also does not validate illegitimate child , because it annexed the word “valid” for “marriage “ .

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[1] Natraj Pillay v. Subbaraya Chettiar, 1938 Mad 693.

[2] Rahmat Ali KHAN (pir) V. Mt.Babu Zuhra (1911) PR No. 14 of 1912 (Civil)
[3] Goutam kundu V. State of W.B. AIR$ 1933 SC 2295
[4] Sadashiv M. Kheradkar V. Nandini S. Kheradkar ,1995 Cr LJ2090 (Bom)
[5] Narendra V. Ram Govindo ,(1901) 4 Bom LR 243 : @( Cal 11: 29 IA 17

[6] Madan Lal V. Smt Sudesh Kumar AIR 1988 Del 193
[7] Mr Muzzaffaruddin Khan V> Syed bArifuddin Khan ,(1971) 3 SCC 810.
[8] Khaniza V. hasan Ahmaad Khan , 1926 Oudh 231.
[9] Prem singh V. Smt . Duha Devt ,AIR Alld 129