Introduction: The Paradox of Truth 

In an era where DNA technology can determine biological paternity with 99.9% accuracy, Indian jurisprudence seldom relies on it when determining paternity. Section 116 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, declares that a child born during a valid marriage is conclusively legitimate, regardless of genetic evidence. What seems like an archaic practice, is in fact a deliberate choice to protect children from the devastating stigma of illegitimacy –a label which still amounts to a social death sentence in modern India.  
 
Colonial Roots and Postcolonial Retention
The provision’s roots lie in the Indian Evidence Act of 1872, a colonial codification shaped by the common law principle known as the “Lord Mansfield rule.” Essentially, under the rule, British lawmakers presumed the husband to always be the father to preserve patriarchal lineage, inheritance rights, and social order. From inception, the principle was rooted in the Latin maxim pater est quem nuptiae demonstrant , meaning “the father is he whom the marriage indicates.” 

After independence, Indian lawmakers and courts re-purposed this colonial tool for a constitutional goal: child-centric dignity. What was once a mechanism to protect property and patriarchal order became a shield to protect a child’s right to an identity free from stigma. This transformation recast the enforcement of the rule from colonial convenience into an evidentiary instrument of social justice, aligned with the values of equality and dignity. 

The Architecture of Legal Protection 

Section 116 establishes that any child born to a married woman during the subsistence of her marriage is conclusively presumed to be the legitimate offspring of her husband. This presumption can only be rebutted through proof of “non-access”. In other words, by demonstrating the absolute impossibility, not mere improbability, of sexual relations between spouses during the relevant period. 

This philosophy runs through Indian law. Section 16 of the Hindu Marriage Act, 1955, legitimizes children of void and voidable marriages. Furthermore, the Hindu Adoptions and Maintenance Act, 1956, obliges parents to maintain illegitimate children. The Supreme Court has praised such measures as serving the “socially beneficial purpose of removing the stigma of illegitimacy.” Together, they show a legislative commitment to privilege dignity over biology, securing identity, inheritance, and care for all children. 

The Child-Centric Jurisprudence of the Judiciary 

The judiciary has reinforced this framework by treating legitimacy as a matter of welfare, not science. In Ivan Rathinam v. Milan Joseph (2025), the Supreme Court rejected a plea for DNA testing by a mother and adult son seeking to establish third-party paternity for maintenance. The Court reaffirmed that “legitimacy determines paternity” under Section 116, and that non-access requires impossibility. It warned against “fishing enquiries” that could expose private lives to scrutiny with “harsh” and irreversible consequences. 

Earlier precedents built the same line of reasoning. In Goutam Kundu v. State of West Bengal (1993), the Court warned that blood tests risk branding a child a “b*stard” and the mother “unchaste.” Kamti Devi v. Poshi Ram (2001) and Banarsi Dass v. Teeku Dutta (2005) likewise stressed that DNA cannot casually unsettle legitimacy. Across decades, the Court has positioned itself as guardian of this child-centric jurisprudence. 

The Empirical Reality of Stigma 

This caution reflects lived realities. NCRB data shows suicides by children labelled “illegitimate” rose 67% between 2014–2018. In Pondicherry, infant mortality among unwed mothers’ children is 125 per 1,000 live births; more than double that of married mothers (51.8). A key driver underpinning this data is the avoidance of prenatal care on the part of said unwed mothers due to shame and fear of discrimination. 

Surveys reveal this societal prejudice on the topic is consistent: over 20% of respondents refuse to accept children born outside marriage, while 37.2% admit ignorance of their challenges. Stigma translates into exclusion in education, healthcare, and marriage prospects. Section 116 thus operates not as legal fiction but as a shield against tangible, demonstrable, harms. 

Confronting the Scientific Critique 

The Law Commission of India’s 185th Report (2003) recommended amending the law to allow conclusive DNA evidence in paternity disputes, arguing that scientific accuracy should override legal presumptions. This recommendation, while scientifically logical, fails to account for the broader social consequences of such a change. 

Unchecked DNA testing risks three tangible, interconnected, dangers as noted by the Court: 

Weaponization – used to harass or destroy families. 

Privacy violations – exposing intimate lives to invasive scrutiny. 

Destabilization – rendering thousands of children illegitimate overnight. 

Subsequent Law Commission reports, such as the 271st Report on DNA Profiling (2017) and the 2018 Consultation Paper on Family Law Reform, reflect a more nuanced approach. Both call for strict regulation of DNA technology and emphasizing the law’s role in combating social injustice. Namely, the 2018 paper demands that the “best interest of the child” serve as the guiding rule in adjudication.  

 Dignity over DNA
Section 116 of the BSA thus embodies and enshrines a conscious judicial and legislative choice to protect dignity even when science says otherwise. In a society where illegitimacy still holds a strong empirical correlation to suicide, infant death, and lifelong social and familial exclusion, s.116 is not a relic but a necessity.