While the Bharatiya Sakshya Adhiniyam, 2023, was envisioned as a decolonized and modernized overhaul of the Indian Evidence Act, 1872, the verbatim retention of the paternity presumption in Section 116 represents a significant legislative oversight. By ignoring a century and a half of forensic evolution, the statute preserves a 'legal fiction' that often stands in direct opposition to biological reality.

Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 states that “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.” This establishes a a powerful legal presumption regarding the legitimacy of children born within a marriage. This provision protects the social status and legal rights of children and also ensure that there is a stability of family relationship as it limits the dispute over paternity. But in this era of significant medical advancements like DNA testing such rigidity of presumption makes this a topic of debate. In certain situations, this presumption prevents the courts from fully examining factual realities and this raises questions about the fairness which is expected from judicial system.

If a child is born during a valid marriage or within 280 days of dissolution of the marriage it is conclusively presumed to be a legitimate child of the man, this presumption can be rebutted if a proof is presented that the parties had no access to each other during the period which is 280 days after dissolution. The rationale of this provision is to protect children from being branded as illegitimate and is also there to safeguard women against the societal stigma of being perceived as unchaste. But having the development of DNA technology, it is now possible to state parentage with an almost certainty and the ongoing enforcement of this dogmatic presumption provokes serious questions of fairness, justice, equality and constitutional proportions and such DNA test cannot disprove the existence of irrefutable evidence of legitimacy that has been overseen in the statute.

The current framework acknowledges 'non-access' as the sole escape hatch for rebuttal. However, in the modern context, 'access' only proves the possibility of paternity, whereas DNA profiling provides the certainty of it. To prioritize a mere possibility over a scientific certainty is to allow the law to operate in a vacuum, shielded from the light of truth.

In many cases like Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, the apex court said that the courts much be cautious while ordering for DNA tests because when legitimacy of a child is questioned then there may be serious consequences for the privacy and dignity of child, which is protected under Article 21 of the Constitution, as it guarantees the right to life and personal liberty and it is used to protect the right to privacy, dignity, and against unwarranted intrusion into personal life and therefore this necessitates that courts should weigh very well the right to seek the truth and the fundamental rights of the child but in cases which involves adultery like Dipanwita Roy v. Ronobroto Roy the supreme court of India did recognise that DNA testing can be permitted by the courts when it is necessary to establish the truth in cases of adultery. The court observed that if such scientific evidence which could be used to prove or disprove claims relating to paternity and if such test is refused by the party, then it might lead to adverse inference. Further more when we look at the case of Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik the court stated that “when there is a conflict between a conclusive proof envisaged under law and proof based on scientific advancement accepted by the world community, the latter must prevail,” therefore emphasizing the fact that sound DNA evidence cannot be ignored in order to come up with the truth. Taken together, these rulings indicate that the judiciary is increasingly aware of the fact that legal presumption can have a valuable role to play in the society but a strictly adhered approach that disregards unmistakable scientific facts can compromise the considerations of fairness and justice and thus there is the need to re-examine the viability of conclusive presumption in the contemporary evidence law.

The conflict here is a zero-sum game between two facets of Article 21: the child’s right to privacy and dignity versus the father’s right to a fair trial and the pursuit of truth. A rigid application of Section 116 tips the scales unfairly, effectively muzzling a party from presenting the most reliable evidence available in the modern world.

A legal system which is meant to protect and uphold justice and is expected to treat everyone equally cannot remain stuck to such assumptions that were made in very different social and technological context. When courts are equipped with tools capable of fixing facts with a high level of certainty, the inflexible evidentiary barriers will run the risk of giving pre-eminence to form rather than substance, and tradition rather than truth. This kind of approach not only undermine the credibility of legal findings, but it also casts a question of whether the law is actually responsive to the requirements of justice in the modern society. The moral ideals of a certain time can basis of law but cannot become law themselves. Law is meant to regulate the society and the society will function properly only because of these regulations and morality is completely subjective and protecting the right and punishment for wrong is the main job of law. And Section 116 of the act denies the party any opportunity to challenge the paternity which in itself is violation of right to fair trial. Since 1872 there has been no revision or amendment in this section, and this section seems to be out of date because it is completely ignoring the advancement of science and modernisation of society.

Admittedly, the judiciary’s hesitation stems from the 'Best Interests of the Child' doctrine. Courts fear that a negative DNA result may 'bastardize' a child, stripping them of their social identity and right to maintenance. However, justice cannot be built on the foundation of a lie. The law must evolve to protect the child’s financial rights through social parentage while acknowledging the father’s right to biological truth.

In this era the courts should be granted more discretion to consider reliable tests like DNA test where it is necessary to provide fair chance to both the parties and yes, the woman should have the right to not to opt for such test. Additionally, the conclusive presumption should be transformed into a strong but rebuttable presumption which will allow courts to preserve social stability while ensuring that credible scientific evidence is not excluded from consideration and keep up with the advancement and modernisation of both society and science.

The modern law system should be flexible to ensure that both interest of children and the parents are protected and actual truth is uncovered while giving justice to the actual victim.

In the pursuit of justice, the law must ensure that tradition does not silence truth.

The law is a living organism that must adapt or perish. By transitioning Section 116 from a 'conclusive proof' to a 'rebuttable presumption,' the Indian legal system can honor its traditional roots of family stability while embracing the precision of modern science. In the pursuit of justice, the law must ensure that tradition does not become a shroud that silences the truth.

- Aditya Tiwari is a third-year BBA LL.B. student at BML Munjal University, Haryana, with an interest in constitutional and evidence law.