BETWEEN PRESUMPTION AND TRUTH: RETHINKING PATERNITY AND “CONCLUSIVE PROOF” IN THE LAW OF EVIDENCE

Abstract

Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 retains a powerful marital presumption by declaring birth during the continuance of a valid marriage to be “conclusive proof” of legitimacy, subject to proof of non-access. This article explores whether the continued use of “conclusive proof” remains appropriate in evidence law when reliable scientific evidence can, in suitable cases, determine biological parentage. The author argues that the issue is not whether legitimacy should be protected or whether DNA testing should become routine. The narrower question is whether the law should continue to make the marital presumption irrebuttable when the factual question of biological paternity may sometimes be capable of responsible determination. The article approaches that question through statutory history, the Law Commission of India’s examination on the subject, the Supreme Court’s developing jurisprudence on paternity testing, and Indian literary and scriptural narratives concerning truth, lineage and disclosure. The article proposes a limited legislative reform. It recommends retaining a strong mandatory presumption of legitimacy while replacing “conclusive proof” with “shall presume”. The reform would also include safeguards concerning relevance, necessity, privacy, child welfare, and scientific reliability. The proposal seeks neither to privilege biology over law nor to diminish the protection of children, but to prevent an evidentiary presumption from becoming an absolute barrier to the ascertainment of truth where justice genuinely requires it.