Presumption of Legitimacy
Definition
Statutory presumption that a child born during the continuance of a valid marriage is the legitimate child of the husband. Rebuttable only by proof of non-access (Section 112 IEA 1872 / Section 116 BSA 2023).
- Applies to
- A child born during a valid, subsisting marriage
- Governing provision (India)
- Section 112 IEA 1872 / Section 116 BSA 2023
- Rebuttal ground
- Proof of non-access between the spouses
- Standard of proof
- Strong, requiring cogent evidence, not a bare denial
Common questions
Can a DNA test alone rebut the presumption?+
Courts have generally required non-access to be shown by other evidence before ordering DNA testing, since the presumption is meant to protect the child's status; a DNA test is not granted merely because a husband disputes paternity without first establishing non-access.
How does non-access differ from simple denial of paternity?+
Non-access means the spouses had no opportunity for marital intercourse during the conception window, for example due to separation or absence; a husband's suspicion or denial of paternity, without evidence of physical non-access, does not meet the rebuttal standard.
Related terms
- Combined Paternity Index (CPI)
- The product of all individual paternity indices across all marker systems tested. Assumes independence of the marker systems. The CPI is a...
- Deficient Paternity Test
- Paternity inferred from the alleged father's relatives (grandparents, siblings) when the alleged father himself is unavailable or deceased.
- Exclusion
- The categorical conclusion that one or more examined features are clearly inconsistent in a way that cannot be explained by projection angle,...
- Inclusion
- All obligate alleles are accounted for. Inclusion is probabilistic, never absolute, and is reported as a CPI plus probability of paternity.
- Motherless Paternity Test
- Paternity analysis where the mother's sample is unavailable. CPI thresholds are raised because the obligate paternal allele cannot be inferred from the...
- Mutation Rate
- STR loci mutate at roughly 0.001 to 0.005 per generation. A single one-step mismatch is typically scored as a possible mutation, not...
- Obligate Paternal Allele
- The allele in the child's genotype that did not come from the mother and therefore must have come from the biological father.
- Paternity Index (PI)
- A likelihood ratio that compares the probability of the observed serological profile if the alleged father is the biological father to the...
- Probability of Paternity (W)
- The posterior probability that the alleged father is the biological father, calculated from the CPI and a prior probability using Bayes' theorem....