Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 preserves the colonial-era presumption of legitimacy. In the age of DNA technology, does this provision protect children or shield biological truths? Discuss.

Q. Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 preserves the colonial-era presumption of legitimacy. In the age of DNA technology, does this provision protect children or shield biological truths? (15 marks, 250–350 words)

Section 116, BSA 2023 re-enacts Section 112 of the Indian Evidence Act, 1872: birth during a valid marriage is conclusive proof of legitimacy, rebuttable only by proving non-access between the spouses [1]. It remains a child-protective shield, but in the DNA era its conclusiveness also forecloses biological truth — making calibrated judicial balancing, not repeal, the answer.

How the provision protects the child - Guards against stigma of illegitimacy, which still carries severe social consequences, and secures the child's derivative claims to maintenance, custody and inheritance. - Blocks DNA tests as a harassment tool in matrimonial and maintenance litigation, where allegations against the mother are cheap to make. - The child holds an independent privacy and bodily-autonomy interest under Article 21 after Puttaswamy (2017, nine judges) [2]; in Aparna Ajinkya Firodia (2024) the Court held a DNA report alone cannot displace the presumption. - Legal parentage is a status, not merely a genetic fact — stability of the family unit is a deliberate legislative choice.

How it shields biological truth - The rule rests on 1872 evidentiary limits, when paternity was unknowable; DNA profiling is now near-conclusive, yet law treats it as one piece of evidence. - Non-access is almost impossible to prove where spouses cohabit, converting a rebuttable-in-form presumption into a near-irrebuttable one. - The child's right to know biological parentage is itself part of identity under Article 21 — a competing, not subordinate, claim. - No enabling statutory framework: the DNA Technology (Use and Application) Regulation Bill, 2019 lapsed without enactment [3], and the Standing Committee flagged inadequate privacy safeguards [4], leaving courts to ad hoc discretion.

The Supreme Court's evolving line — from Ivan Rathinam (2025) to the 2026 ruling upholding a DNA test on demonstrated necessity [5] — shows the way: retain Section 116 as the default protective rule, while codifying an eminent-need test and a data-protection-compliant DNA law. Enacting the pending Bill with judicial-oversight safeguards would harmonise the child's dignity, identity and privacy under Article 21.

(~310 words)

Sources: 1. The Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023), Section 116 — India Code — presumption of legitimacy; rebuttal only by proof of non-access 2. Justice K.S. Puttaswamy (Retd.) v. Union of India, WP(C) 494/2012, judgment of 24 Aug 2017 — Supreme Court of India — privacy and bodily autonomy as fundamental rights under Article 21 3. The DNA Technology (Use and Application) Regulation Bill, 2019 — PRS Legislative Research — absence of a statutory framework regulating DNA testing 4. Standing Committee Report Summary: DNA Technology (Use and Application) Regulation Bill, 2019 — PRS Legislative Research — concerns on inadequate privacy safeguards in DNA profiling 5. Judgments and Orders portal, Supreme Court of India — 2026 ruling upholding a court-ordered DNA test on demonstrated necessity