Legal development of DNA evidence in determining paternity tests

This article titled ‘Legal development of DNA evidence in determining paternity tests’ is written by Ritik Shah and presents an analysis of the legal development of DNA evidence in determining paternity tests. The evolution of technology and its emergence into new scientific methods have brought a significant change in the criminal justice system, yet Section 112 of the Indian Evidence Act has created a tussle between the judiciary and legislature. The dilemma between old legislation and new technology has created confusion in many judicial decisions and permanent legislation is now a need of the hour.

I. Introduction

On the 3^rd of August, 2021, a Bench of Justice Vineet Saran and Dinesh Maheshwari, set aside the order of the Lower court and Bombay High Court which allowed the plea of a man to order a DNA test in order to prove the legitimacy of the child. The apex court said that plea of DNA test to prove the legitimacy of a child born during the subsistence of marriage cannot be entertained unless the primary evidence for adultery is acknowledged by the court.

This brings us to the legal development and journey of DNA evidence in determining paternity tests in the Indian Judicial System.

Section 4 of the Indian Evidence Act talks about Presumption. It means taking anything as true, without examination or proof. Section 4 includes Conclusive proof which is an irrebuttable presumption of law that lays down that on proof of one fact, another fact is also regarded as proved and no evidence is allowed for the purpose of disproving it.

A well-known instance of Conclusive Proof is Section 112 of the Indian Evidence Act, 1872 which talks about the presumption of legitimacy of the child.

Section 112 provides that any child born,

1. during the continuance of valid marriage, between its mother and any man, or
2. within 280 days after its dissolution, the mother remaining unmarried,

shall be conclusive proof that it is the legitimate child of that man.

The only exception is that the parties can rebut the presumption by proving non-access at the time when a child could have been begotten.

This section is based upon the legal maxim ‘pater est quem nuptial demonstrant’ which means “he is the father whom the marriage indicates”. The basic aim of the legislators was to prevent the bastardy of a child and to advocate the validity of marriage and the legitimacy of the child. Thus, under Section 112, a conclusive presumption of legitimacy arises from birth in wedlock and not from conception.

However, with growing technology in the last few decades and the emergence of scientific methods such as DNA Test, RNA Test, Blood Test as one of the most accurate pieces of evidence, admissible in the Indian Evidence Act, the demand for these tests by the litigant has also been increasing to prove the legitimacy of a child under Section 112.

II. The inception of DNA analysis into our justice system

Although DNA analysis was first proposed by Alec J. Jeffreys in 1985, India saw its first case of DNA evidence for the paternity test in 1991, where Kerela High Court upheld the order of C.J.M. Telicherry (Thalassery), Kerala in Kunhiraman v. Manoj[1], where a village girl alleged that her son, Manoj was born on account of an illicit relationship between her and Kunhiraman, thus seeking maintenance for her child. The DNA evidence was admissible under Section 45 of the Indian Evidence Act as an expert opinion, which revealed that Kunhiraman was the biological father of the disputed child.

Although there was no specific law on DNA testing till 1991, yet DNA testing got its legal validity through this judgment and started the journey of DNA evidence for a paternity test in the Indian Judicial System.

1. Landmark Judgements

In Gautam Kundu v. State of West Bengal[2], the apex court laid down that,

1. courts cannot order blood tests as a matter of course
2. the prayer for blood test shall not be entertained
3. the husband must establish a strong prima facie case of non-access in order to dispel the presumption arising under section 112
4. the consequence of ordering the blood test should be examined by the court beforehand as to whether it may brand the child as a bastard and mother as an unchaste woman.

In Kamti Devi v. Posh Ram[3], the apex court observed that section 112 was enacted when technologies such as RNA and DNA was not even contemplated by the legislature. However, the court held DNA evidence should not be taken as proof of non-access as it might result in undermining the legislative policy.

Later on, in Sharda v. Dharamapal[4], SC took a lenient view and held that a matrimonial court has the power to order a DNA test only when the applicant has a strong prima facie case and there is sufficient material before the court.

In 2003, the Law Commission, in its 185^th report, also recommended a revision to Section 112 in the Indian Evidence (Amendment) Bill, 2003 and include DNA testing in the Indian Evidence Act, keeping in mind the invention of new technologies in the field of science, which can help in solving many paternity disputes easily but till date, there is no legislation for the same.

In 2005, the parliament amended the Code of Criminal Procedure and included DNA testing in Criminal jurisprudence but there was no such amendment for Section 112 of the Evidence Act for determining paternity disputes.

The infringement of the Right to Privacy enshrined under Article 21, which was one of the major criticism of DNA testing was resolved in Selvi v. Karnataka[5], where SC clearly held that DNA Tests are unconstitutional in criminal proceedings and the test cannot be conducted without the consent of accused.

However, if the man agrees to undergo these tests, it will be admissible under section 45 of IEA, yet it is not the source of power for courts to order the tests. Even the 2018 judgment of Justice K.S. Puttaswamy (Retd) v. Union Of India, the Supreme court clearly held that the fundamental right to privacy is not an absolute right on the ground of public interest which implies that DNA testing can be ordered in exceptional cases.

Again, the order in the Narayan Dutt Tiwari Case brought the admissibility of DNA evidence into the limelight when the Supreme Court upheld the order of Delhi High Court in 2012 asking Mr Tiwari, three times chief minister of Uttar Pradesh, to undergo a DNA test in response to a paternity suit filed by his son, Rohit Shekhar Tiwari.

The legal development in Nandllal Wasudeo v. Lata Nandlal[6], was a significant move by the Supreme Court, where it observed that DNA test should be resorted to, only when it is imminently needed but when the truth or fact is known, there is no room for presumption. The court held that when there is a conflict between conclusive proof and proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former, which implies that DNA Tests will prevail over the presumption of conclusive proof under Section 112 of IEA.

Later on, in the landmark judgment of Dipanwita Roy v. Ronobroto Roy[7], SC held that presumption under Section 112 of IEA is a rebuttable presumption and sending the party for DNA Test for rebutting such presumption is permissible. The court observed that DNA testing is the most legitimate and scientifically perfect means which can be used by the husband to establish his assertion of infidelity. This decision by SC made the object of Section 112 redundant.

2. Parliamentary interventions

In 2019, DNA Technology (Use and Application) Regulation Bill was introduced in Lok Sabha which provides regulations of the use of DNA technology for establishing the identity of certain persons. However, this bill was referred to the Parliamentary Standing Committee on science and technology, which pointed out some provisions which can be misused and therefore, this bill has also not yet taken the form of an act.

The decision regarding DNA Tests/ Blood Tests for determining paternity by any court depends upon various facts and circumstances of the case. Even though the presumption under Section 112 is to prevent the innocent child from getting a tag of a bastard, yet the court cannot pre-empt the consequences by denying the truth.

The difference between the Dipanwita Roy case and the Gautam Kundu case apart from the emergence of technology was that in the former, the court had already directed to undergo a DNA test but the opposite party challenged it only after the reports were unfavourable to their interests whereas in the latter case it was challenged immediately.

With the suggestion of the Law Commission of India to amend Section 112 in the Indian Evidence (Amendment) Bill, 2003 which proposes to expand the scope of exceptions and include tests that can conclusively prove the legitimacy of a child, and with the introduction of DNA Technology (Use and Application) Regulation Bill, 2019, the use of DNA Tests in accordance with Section 112 has brought up many debates in respect to, near about, 150-year-old evidence law. However, these legislations are yet to be passed in the parliament.

Article 51A (h) of the Constitution of India lays down that it shall be the duty of every citizen of India to develop a scientific temper. Therefore, in absence of any specific legislation, whenever there is an apparent conflict between conducting a DNA test and presumption arising out of Section 112, the court should exercise its discretion only after looking at our Fundamental Duties and balancing the interest of the parties.

III. Conclusion

The legislature could deliberate upon the above bills and take steps towards making laws that will end the confusion for the judiciary and will also be in the interest of justice. In the current scenario, the court needs to abstain from directing DNA tests in the matter of paternity in a routine and casual manner and should look for prima facie evidence of non-access. Then, if there is no other possible way for the court to reach the truth and resolve the controversy, it should order for such tests, because “Truth must triumph” is the hallmark of justice.

Edited by- Akriti

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References

[1] II (1991) DMC 499

[2] AIR 1993 SC 2295

[3] AIR 2001 SC 2226

[4] AIR 2003 SC 3450

[5] AIR 2010 SC 1974

[6] AIR 2014 SC 932

[7] AIR 2014 SC 932

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1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination