Section 116 Bharatiya Sakshya Adhiniyam, 2023: Birth during marriage, conclusive proof of legitimacy

Section 116 of Bharatiya Sakshya Adhiniyam, 2023: Birth during marriage, conclusive proof of legitimacy

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a)

Legal Commentary & Landmark Judgments: Section 116

Section 116 creates a conclusive presumption of legitimacy, providing that the birth of any person during the continuance of a valid marriage, or within 280 days after its dissolution, shall be conclusive proof of legitimacy unless non-access is proved.

Conclusive Proof Standard: The strongest presumption known to Indian law: once birth during marriage is established, the court cannot permit evidence of illegitimacy.
Single Statutory Exception: Non-Access: The presumption can be rebutted ONLY by proving that the husband and wife had no access to each other at any time when the child could have been begotten.
Strict DNA Test Standards: DNA testing cannot be ordered routinely or as a fishing inquiry; non-access must be demonstrated prima facie first.

Key Landmark Precedents:

Gautam Kundu v. State of West Bengal (1993) 3 SCC 418: The Supreme Court held that Section 112 IEA (Section 116 BSA) requires proof of non-access to displace legitimacy; courts will not lightly direct DNA tests that bastardize a child.
Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023) SCC OnLine SC 161: Reaffirmed that DNA tests cannot be directed mechanically on mere infidelity allegations; the party seeking DNA must first make out a strong prima facie case of non-access.

Courtroom Practice & Strategic Litigation Guidance:

In maintenance and paternity disputes, resist applications for DNA tests by invoking Section 116: emphasize that marriage subsisted at conception and that non-access has not been established, protecting the child from social stigma.