The Presumption of Legitimacy Under Section 165 of the Evidence Act and Its Inadequacies in the Determination of Legitimacy Status/Paternity of a Child: A Call for the Adoption of Genetic Testing (DNA Test) as a Preferable and Conclusive Proof of Paternit

Abstract

The Nigerian Courts in plethora of cases have placed heavy reliance on the presumption provided for under Section 165 of the Evidence Act in the determination of the paternity/legitimacy status of a child. This rebuttable presumption clothes the court with the power to make certain inferences as to the paternity of a child once it is established that such a child was given birth to during the subsistence of a valid marriage. The Court can also in situations where the marriage has been dissolved also make the same inferences, if the child was given birth to within the permitted gestation period. This rebuttable presumption provided for under Section 165 of the Evidence Act also presupposes that where a married woman in the course of an extramarital affair gets pregnant and such pregnancy is accepted by the husband, if any claim by a third party is made in respect of such child, the Court is clothed with the power under the Act to presume that the product of such extramarital affair is a legitimate child of the subsisting valid marriage. This paper, in the face of technological advancements in genetic testing which involves DNA Profiling, contends and argues that the presumption provided for under Section 165 of the Evidence Act is grossly inadequate in the determination of paternity of a child most especially where the paternity of such child is in dispute.

Keywords: Paternity, Marriage, Legitimacy, Presumption, Gestation Period, DNA, Genetic.

DOI: 10.7176/JLPG/111-08

Publication date:July 31^st 2021