Section 116 BSA 2023: Birth During Marriage and Conclusive Proof of Legitimacy
Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) contains the evidentiary rule concerning legitimacy where a person is born during a valid marriage or within a specified period after its dissolution. The provision creates conclusive proof of legitimacy, subject to the statutory exception based on non-access between the spouses.
At a glance: The Bharatiya Sakshya Adhiniyam, 2023 is Act No. 47 of 2023 and came into force on 1 July 2024. Section 116 corresponds in substance to Section 112 of the Indian Evidence Act, 1872.
Text of Section 116 of the Bharatiya Sakshya Adhiniyam, 2023
116. Birth during marriage, conclusive proof of legitimacy. - 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.
Official statutory text may be checked on the India Code page for the Bharatiya Sakshya Adhiniyam, 2023. The commencement notification issued by the Ministry of Home Affairs appointed 1 July 2024 as the date on which the BSA came into force.
What Section 116 means
The section establishes a strong evidentiary rule in favour of legitimacy. When the statutory conditions are proved, the law treats the child as the legitimate child of the husband. The provision is framed as a rule of conclusive proof, not merely a rebuttable presumption.
Under Section 2(1)(b) of the BSA, when one fact is declared to be conclusive proof of another, the Court must regard the latter fact as proved and cannot permit evidence merely for the purpose of disproving it. Section 116 itself, however, expressly preserves the specific exception where it is shown that the spouses had no access to each other at any time when the child could have been begotten.
Essential conditions under Section 116
- The person must have been born during the continuance of a valid marriage between the mother and the man concerned; or
- the birth must have occurred within 280 days after dissolution of that marriage;
- where the birth occurs after dissolution, the mother must have remained unmarried during that period; and
- the conclusive rule does not operate where it is proved that the spouses had no access to each other at any time when the child could have been begotten.
Meaning of "conclusive proof"
"Conclusive proof" is specifically defined by Section 2(1)(b) of the Bharatiya Sakshya Adhiniyam, 2023. In practical terms, once the foundational fact required by the law is established, the Court must treat the resulting fact as proved and cannot allow ordinary evidence to be led simply to disprove it.
For Section 116, the legislature has itself built the issue of non-access into the provision. Therefore, the legal inquiry is not an unrestricted challenge to legitimacy; it is focused on whether the statutory conditions exist and whether non-access at the relevant time can be shown.
What does "no access" mean in this context?
The expression "no access" concerns the opportunity for marital intercourse during the period when the child could have been conceived. A party relying on the statutory exception must establish non-access at the relevant time. The provision does not say that mere suspicion, strained relations, or a general allegation of infidelity is enough by itself.
Important: Questions involving paternity, legitimacy, DNA testing, privacy, and the welfare or status of a child can involve constitutional and family-law considerations in addition to the Evidence law. The outcome depends on the facts and the applicable judicial precedents.
Section 116 BSA and former Section 112 of the Indian Evidence Act
| Point | Section 116, BSA 2023 | Former Section 112, Evidence Act 1872 |
|---|---|---|
| Subject | Birth during marriage as conclusive proof of legitimacy | Birth during marriage as conclusive proof of legitimacy |
| Post-dissolution period | Within 280 days, mother remaining unmarried | Within 280 days, mother remaining unmarried |
| Statutory exception | No access between the spouses when the child could have been begotten | No access between the spouses when the child could have been begotten |
| Current status | In force from 1 July 2024 | Legacy provision under the repealed Indian Evidence Act, 1872 |
Practical legal effect
Section 116 protects the legal status attached to birth during a valid marriage by making legitimacy conclusive once the statutory conditions are satisfied. The exception is deliberately narrow: the relevant fact to be shown is non-access between the spouses during the possible period of conception.
Accordingly, a dispute under Section 116 generally requires attention to the validity and duration of the marriage, the date of birth, any dissolution of marriage, whether the mother remained unmarried during the specified 280-day period, and evidence relating to access or non-access during the relevant period.
Official resources
For authoritative reference, consult the Bharatiya Sakshya Adhiniyam, 2023 on India Code and the Ministry of Home Affairs commencement notification dated 23 February 2024.
Disclaimer: This article is for general legal information. It is not a substitute for advice on the facts of a particular case.