Admissibility of DNA test and section 112 of the Evidence Act

Introduction

The admissibility with respect to DNA testing before the courts of law has remained an ambiguous issue to be resolved since times. When we say DNA testing, it specifically refers to the circumstances whenever the paternity of a father or the legitimacy of a child is the fact in issue. These types of issues take us directly towards section 112 of the Indian Evidence Act which is based on the doctrine of ‘presumption of paternity’.

However, the applicability of this section has been disrupted for several past decades due to the development in scientific temperaments and technologies. The new technique of DNA testing has somewhat complemented the effect of this section by providing an almost precise mechanism to confirm the paternity of any individual with respect to the child whose legitimacy is an issue.

However, the new technology has also come up with several challenges with it. In this case, DNA testing has not been allowed in each and every case by the courts since it goes in conflict with several other rights like the right to privacy.

DNA testing has been approved in the country for certain cases like rape, murder, etc but still, the controversy remains as to whether it should be allowed in cases when the issue is legitimate. Since times the courts have undergone various advancements gradually recognizing and approving the need for DNA testing under such circumstances. However, there is still a need for a uniform pattern to be followed as to whether it should be allowed in each case or not. Let us look into this issue in detail under this writing.

Section 112 of the act

As per section 112 of the act[1] “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 son 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.”

This section strongly presumes the legal validity of the child that was born in continuance of a valid marriage and the paternity of the father or within 280 days of the dissolution of the marriage. The only exception provided under this rule of presumption is if the father or the man can prove before the court that he has no access to the mother at the time when the child was begotten.

The basic reasoning behind this notion is that it is pointless to question the legitimacy of a child that has been born out of a valid marriage and continuing access between the mother and father.

Loopholes in section 112

Although the section confers a strong presumption on the legitimacy of a child and the paternity of the father, still there remains some ambiguity with respect to this presumption.

Scope of ‘non-access’

The only exception provided under this section is that, if the father can prove his ‘non-access’ at the time when the child was begotten. However, the ambit of this non-access is not clearly specified and there is high possibility of it getting misinterpreted. The term is wider enough to cover all possible aspects of non-access and may result in some unjust interpretation.

Against morality

The main objective to introduce this section is to uplift morality[2] by providing legitimacy to a child in order to uplift his dignity. However, this morality could not be substantiated by the rights of an individual who wants to prove his non-access to paternity through DNA. It would not be in the interests of justice if wrong paternity is imposed on any individual through this strong presumption only to uplift the cause of morality.

It is rightly said by Justice A.M. Khanwilkar that “Social morality cannot violate the rights of even one single individual”.[3]

DNA testing and its admissibility

DNA profiling has evolved as a new concept in the Indian criminal justice system for several past decades. Deoxyribonucleic acid (DNA) can also be termed as the building block or the genetic Xerox of an individual’s body. It is the pattern of the compounds of DNA that differentiates one individual from the other. Various techniques such as DNA profiling, DNA analysis, etc can be used to find out the DNA in the blood, hair, skin, etc of an individual that could help in the establishment of any relevant fact before the court of law under any such circumstances.

DNA Tests are conclusive evidence admissible under the Indian Legal System.[4] Under cases involving grave or serious offenses such as rape murder etc, the admissibility of DNA testing has been highly upheld because of its accuracy and efficiency. However, under civil law cases such as those considering the paternity of any person, this test has undergone several criticisms and still, there is no uniform code prescribed about the admissibility of DNA testing under such types of cases.

Recently, the DNA Regulation bill 2019 has been introduced which is trying to establish a uniform framework for the utilization of DNA as scientific evidence. The bill expressly provides that written consent of the individual must be taken before collecting any sample from him but this provision would be relaxed in cases of offenses punishable with imprisonment of seven years or more.

The bill has also classified the class of offenses or suits under which DNA testing could be allowed as admissible by the honorable courts. However, the bill is yet to come into effect as it is pending consideration before the parliament.

The legality of DNA test

DNA technology has been criticized too under various scenarios as it is said to be in violation of several fundamental rights of the individual such as the Right to Privacy under Article 21 and the Right against self incrimination under Article 20(3) of the Constitution of India.

Right to privacy[5]

It has been argued in many judicial interpretations that the use of DNA technology and taking samples of blood, hair, etc from an individual is somehow a breach of the privacy of that person.

In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women[6], the apex court observed that the right to privacy of an individual is breached through the DNA test and hence it should not be allowed as a usual course of action. It reiterated the fact that there must be some strong prima facie evidence in order to allow the admissibility of DNA testing as an evidential record or to have it as conclusive proof.

It was said that “when there is an apparent conflict between the right to privacy of a person not to submit himself forcibly to a medical examination and duty of the court to reach the truth, the Court must exercise its discretion only after balancing the interests of the parties and on due consideration whether, for a just decision in the matter, a DNA test is eminently needed.”

Hence, a DNA test can only be allowed in cases where there is greater public interest and there is some strong prima facie evidence for the case.

Right against self-incrimination[7]

It may be said that DNA sampling from an individual may be in conflict with the right against self-incrimination as a person cannot be forced to witness against himself. However, it has now been established by the courts through various judgments that the self-incrimination right is not violated through such technology. Obtaining samples from the person alleged does not violate any such right.

It is only recently in the case of Malappa @ Malingaraya v. State of Karnataka[8] that the purpose of DNA test, in order to identify paternity, is not a violation of the right against self-incrimination. The simple reasoning behind the decision was that the self-incrimination right is applicable only to testimonial evidence in India and not the material or scientific evidence.

Judicial developments

The validity of DNA testing in cases of legitimacy or paternity first came into consideration before the honorable court in the case of Gautam Kundu v. State of West Bengal[9].

The court in this judgment considered the legal validity of allowing the blood test of an individual and held that courts in India cannot grant for the conduct of blood tests as a usual course of action under each case. It further held that no individual can be forced or compelled to provide his blood sample for any purpose. The honorable authority herein observed that it should keep in mind the consequences of allowing the blood test rather than proving the illegitimacy of a child.

Furthermore, in the case of Amarjit Kaur v. Harbhajan Singh and Anr[10], the honorable court observed that at the time when Section 112 was brought to action, there was no such concept of DNA technology. It further held that although the accuracy of DNA test i.e 99.9 % is totally genuine it still lacks in discarding the strong presumption of paternity as provided under section 112 of the Evidence act.

Hence, initially, the DNA test was not recognized as a strong recourse to counter the presumption of paternity under section 112. The test was allowed only in cases having some strong prima facie evidence of ‘non-access’ at the first instance. It was something in my opinion unjust and unreasonable as a person who can prove his point through some medical examination is not being allowed to do so or a child who can prove his legitimacy through it is unable to take any recourse only due to the issue with privacy etc.

Afterwards, however, the position of this concept has changed and now courts in several decisions have recognized the need to allow this test and promote the principles of justice.

Thereafter in the case of Bhabani Prasad Jena etc v. Convenor Secretary Orissa, the importance of DNA profiling under such matter was recognized by the courts and it was held that where paternity is an issue, the use of DNA is a very delegated aspect. If modern science provides any method, such method should not be ignored to use whenever required, but reasonable factors must be taken into account.

Also recently, in the famous case of Nandlal Basudeo Badwaik v. Lata Nandlal Badwaik[11], it has been held by the Supreme Court that having the truth in hand and still neglecting the part of DNA evidence is somehow unjust and unfair. It further pointed out that no burden should be put upon the father who is not being the actual father of the child whose legitimacy is an issue. Hence, in this case, the court pointed out the aspect of admitting the DNA technology for upholding the notions of justice.

Conclusion

Therefore, after going through the whole conceptualization of DNA testing with respect to the issue of legitimacy and paternity under section 112 of the evidence act, we can conclude that the admissibility of this DNA technology in order to get accurate and genuine rationales or decisions has been felt by the Indian courts since past few times. In many cases, the strong presumption of section 112 has been contoured with DNA testing, and where the need is much, it has been allowed to be admissible by the courts of law.

But still, controversies remain as to whether DNA tests can be allowed under which cases and which circumstances as they collide with some individual rights too such as the right to privacy. Also, the DNA regulation bill which is yet to be passed has solved the purpose to some extent but it still lacks the procedural part. Henceforth, a strong uniform standard with respect to the cases and situations in which DNA technology should be applied or not.

Also, where the issue is with respect to paternity and it is of utmost importance to provide justice, DNA testing may be allowed to the respective parties if the courts think it convenient to do so. Hence, complete uniformity is required with respect to the issue along with all the procedural requirements in order to reduce ambiguity and promote the principles of justice and equity.

References:

• Indian Evidence Act, 1872 S.112, Act 1 of 1872
• Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454.
• Navtej Singh Johar & Ors. v. Union of India, W. P. (Crl.) No. 76 of 2016.
• Pantangi Balarama Venkata Ganesh vs. state of Andhra Pradesh, 2003 crlj 4508 (AP).
• Bhabani Prasad Jena etc v. Convenor Secretary Orissa, CIVIL APPEAL NOS. 6222-6223 OF 2010
• Malappa @ Malingaraya v. State of Karnataka, 2022 LiveLaw (Kar) 3.
• Gautam Kundu v. State of West Bengal, 1993 AIR 2295, 1993 SCR (3) 917
• Amarjit Kaur v. Harbhajan Singh and Anr, 2003 (1) AWC 344 SC
• Nandlal Basudeo Badwaik v. Lata Nandlal Badwaik, 2014 SC

Endnotes:

[1] Indian Evidence Act, 1872 S.112, Act 1 of 1872

[2] Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454.

[3] Navtej Singh Johar & Ors. v. Union of India, W. P. (Crl.) No. 76 of 2016.

[4] Pantangi Balarama Venkata Ganesh vs. state of Andhra Pradesh, 2003 crlj 4508 (AP).

[5] INDIA CONST. art. 21

[6] Bhabani Prasad Jena etc v. Convenor Secretary Orissa, CIVIL APPEAL NOS. 6222-6223 OF 2010

[7] INDIA CONST. art. 20(3)

[8] Malappa @ Malingaraya v. State of Karnataka, 2022 LiveLaw (Kar) 3.

[9] Gautam Kundu v. State of West Bengal , 1993 AIR 2295, 1993 SCR (3) 917

[10] Amarjit Kaur v. Harbhajan Singh and Anr, 2003 (1) AWC 344 SC

[11] Nandlal Basudeo Badwaik v. Lata Nandlal Badwaik, 2014 SC

This article has been submitted by Aryan Patwari, a student from Himachal Pradesh National Law University, Shimla.