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.

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.