DNA test In Paternity Dispute

Evidence Project Work

Amity Law School

SHRUTI SHRIVASTAV
Semester 6th

A3208308150
 AMITY LAW SCHOOL,
AMITY UNIVERSITY,
NOIDA.
FORWARDING CERTIFICATE

Ms. SHRUTI SHRIVASTAV has been permitted to write a

project
on “DNA Test In Paternity Dispute”
for IBA.LLB(H),internal evaluation of Amity Law School,
Amity University,Noida.

Teacher: Ms. Ruchi Lal

Dated: 7 th March 2011

2
 ACKNOWLEDGEMENT
As my research work for this project has concluded, there are a number of people
I would like to thank for this successful attempt. I thank the esteemed Director of
the Institution, Maj. Gen. Nilendra Kumar for inculcating the concept of preparing
a project and allowing me to present my viewpoints in a liberal manner. In
addition to this, I would like to show my heart – felt gratitude to Prof. Ruchi Lal,
who undertook the role of a supervisor, mentor and guide for the successful
preparation of this project.

I would like to thank the library staff of Amity Law School, Noida. On a personal
level, I would like to extend appreciation towards my family and friends who
supported me throughout.

SHRUTI SHRIVATAV

A3208308150

B.A.LL.B (Third Year).

3
 CONTENTS

1. Table Of Cases ……………………………………………………………………..05

2. Introduction ………………………………………………………………………..06
3. Section 112 of Indian Evidence Act ……………………………………………….06
4. Problems with the Section …………………………………………………………11
 The case of identical twins ………………………………………………...11
 Section 112, Sperm Banks And Artificial Insemination …………………..11
 Section 112 and surrogacy …………………………………………………12
 The ‘continuance of a valid marriage’ clause ……………………………..13
 280 Days Clause …………………………………………………………...13
5. Importance And Relevance Of Forensic Science And DNA Technology In Legal System
………………………………….…………………………………………………..14
6. Paternity Test In U.K ………………………………………………………………15
7. Paternity Test In U.S.A ....………………………………………………………….15
8. Paternity Test In India ……………………………………………………………...16
9. Conclusion ………………………………………………………………………….20
10. Bibliography ………………………………………………………………………..22

4
 TABLE OF CASES

 Dukhtar Jahan v. Mohd. Farooq, (1987) 1 SCC 624;

 Amarjit Kaur v. Harbhajan Singh (2003) 10 SCC 228

 Kamti Devi v. Poshi Ram, (2001) 5 SCC 311;

 Samuel v. Annammal 1934 M 310;

 Jagannath Mudali v. Chinaswamy Chetty 55 M 243;

 Sivakami Ammal v. Koolydi Chetttiar 1934 M 318

 Prem Singh v Dalla Devi
 Sharmila Devi v Shankar Das
 Ganashyam Chaturvedi v Radha Devi

 Sethu v. Palani, 49 M 553;

 Pal Singh v. Jagir, 7 L 368
 Gautam Kundu Vs State of West Bengal AIR 1993 SC 2259
 Anil Kumar v. Turaka Kondala Rao ,1998 Cri.LJ 4279(AP)
 Banarsi Dass v. Teeku Datta (2005)4 SCC 449
 Perumal Nadar v. Ponnu Swami AIR 1971 SC 2352
 Raghunath v. Sharadbhai AIR 1986 Bombay 386
 Sadashiv Mallikarjun Khedarkar v. Nandini Sadasiv Khedarker 1995 Cri L J 4090 (Bom)
at 4093
 Sanjeera v. Sahm 2000 Cri L J 1208(Ker).
 Alika Khosal Vs. Thomas Mathew,
 S.Thangavelu v. S.Kannammal AIR 2005 MAD 106(107)
 Sharda v. Dharmpal (2003) 4 SCC 493
 N.D Tiwari case
 C.B.I. v. Amaramani Tripathi
 Maneka Gandhi v. Union of India AIR 1978 SC 597

5
Introduction

“Mother is Truth, Father is Faith”

Is not merely a saying in old wisdom, it is also a strict legal presumption. Just that in law, it
is simply articulated a little differently- “Maternity is always certain. Paternity is a matter of
inferences.” And it is on these legal presumptions of old wisdom that our modern law is
based upon. The problem is modern scientific developments are shattering these principles.
The problem is that the ancient law as to legitimacy is yielding absurd results in modern
times. The question “How adequate is the ancient law as to legitimacy in these modern
times of surrogacy, sperm banks, In Vitro Fertilizations and of course, the much debated-
DNA testing?” stares the modern jurist in the face. This article is an attempt to answer that
question. It is needless to mention that it concludes that the law is grossly inadequate, the
legal presumptions disposable and the need- a new provision.1

Section 112 of the Indian Evidence Act

Section 1122deals with law as to the proof of legitimacy as it stands today. It says that the
fact that a person was born during the continuance of a valid marriage or within 280 days
after its dissolution but before the woman remarried someone else is itself a conclusive
proof that the person to whom the mother of the child was married is the biological father of
the child born.3 The only way in which a man may prove that he is not the father of the
child born is by proving that he could not possibly have had sexual intercourse with the
mother at any time during which she could have conceived the child born. This can be
proved either by showing that the man was away in some other city or at a distance from
which he could have had no possible opportunity of having sexual intercourse with the

1
http://www.airwebworld.com/articles/index.php?article=1428

2
Section 112 of the Indian Evidence Act: Birth during marriage, conclusive proof of legitimacy-
The fact that any person was born during the continuance of a valid marriage between his mother and
any man, or within 280 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.

3
Dukhtar Jahan v. Mohd. Farooq, (1987) 1 SCC 624; Amarjit Kaur v. Harbhajan Singh (2003) 10
SCC 228

6
mother or by proving that he was impotent at all times at which the child could have been
conceived. If however, the husband fails to prove any of these, he shall be deemed to be
the father of the child born even if he can prove that someone else is the biological father of
the child born, even with infallible scientific evidence.4
The wordings of Section 112 of Indian Evidence Act starts, stating, "Birth during marriage,
conclusive proof of legitimacy". Here the legal presumption is similar to that of the Latin
Maxim, ‘pater est quem muptice demonstrat’, meaning thereby, ‘he is the father whom the
marriage indicates’. 5From ancient times, it is the presumption that if the husband was
within the four seas, at any time during the pregnancy of wife, the presumption was
conclusive that her children were legitimate. Under this section, there is a conclusive
presumption that a child born during the continuance of a valid marriage is a legitimate
issue of parents, no matter, how soon the birth is, after the marriage.
The principal reason for this presumption was that in 1872 when the Bill was enacted there
was no means of ascertaining the biological paternity of a child. The common law in spite of
recognizing that moral justice demanded none but the biological son of a man, begotten
upon his wedded wife, shall inherit his rank and lands, on account of practical impossibility
of ascertainment a policy was laid that society merely requires that property shall have an
owner and a bastard may be as competent to hold, and to perform all the duties annexed to
it, as the true heir.6 This position as to illegitimate children is also found in Modern Hindu
Law.7

Point being that the presumption of legitimacy has its roots in social utility rather than
factual paternity and the Section merely presumes paternity as a matter of policy and not
as a matter of fact. The reason simply being that at the time the Section was enacted
factual paternity could never be ascertained beyond reasonable doubt.

4
Kamti Devi v. Poshi Ram, (2001) 5 SCC 311; Samuel v. Annammal 1934 M 310; Jagannath Mudali
v. Chinaswamy Chetty 55 M 243; Sivakami Ammal v. Koolydi Chetttiar 1934 M 318

5
Sir Harris Nicholas; A Treatise on the Law on Adulterine Bastardy, with a Report of the Banbury Case, and all
Other Cases bearing on the Subject

6
In explaining how the common law courts rationalised legitimacy outside actual paternity, Sir Harris cited the
treatise of Britton, which is supposed to have been compiled in the reign of King Henry the Third.

7
Section 11 d the Hindu Marriage Act,1955

7
When we look into the reasoning behind this notion, the only reason which comes up, is
that it is undesirable to enquire into the paternity of child whose mother and her husband,
had between them, a subsisting marital status and had access to each other. The law
presumes strongly in the favor of the legitimacy of the off-spring. The husband who is
strongly disputing the point of legitimacy of the child, can only rebut on the issue of ‘access’
and ‘no-access’, otherwise the legitimacy, in every case, is deemed. The very objective of
this section seems to be gender biased, from its commencement. And, to decide the
conclusiveness, only on the basis of argument will not render the purpose of judiciary in
true sense.

One more reason as to why Section 112 was enacted in its present form is that in 1872
when the Bill was enacted, polygamy was deep rooted in the Indian society. Men had
several wives and extra marital relations. Women could be easily exploited and discarded.
By making a presumption as to legitimacy in all cases as long as the man had an
opportunity and the ability to have sexual intercourse with his wife, the wife’s chastity was
protected from being doubted and she was protected from being harassed in the society.
This position has now changed substantially. Polygamy is illegal. Monogamy has been
perpetuated. Men have just one wife and she is not easily disposable. 8

Moreover, there still lies an ambiguity in the contents of this section. Here the law states
that if a child is born within 280 days, after dissolution of marriage, the legitimacy of that
child is conclusive. Here, it seems that the law is a step ahead then the medical science, as
the point regarding exact days of child birth, is not settled in medical arena, till date. It is
basically an issue of medical science which has to be dealt with sincere scientific aptitude
and by Laws of Nature. Deciding this issue, on the recourse of legal arguments, is totally a
faulty approach and the course, which we are following today, deliberately ends up in faulty
conclusions.

Basically, this section was formulated in year 1872, nearly 140 years ago. But, in last three
decades, there is an unpredictable growth of scientific temperament. And, even the Legal
Community is showing the impression of the same.

The Courts readily admits the scientific evidences in case of theft, rape, murder and what
not. But it is far beyond the reasonable understanding as why the issue of legitimacy is left
open, to be decided by the legal interpretations and not by scientific techniques.

DNA is an abbreviation of Deoxyribo Nucleic Acid. It is an organic substance, which is found

in every living cell and gives an individual a personal genetic blue print. It can be extracted
from a whole variety of different materials like,. Blood, saliva, semen, hair, urine, body
fluids, bones, body organs etc. DNA was discovered in 1869 by a Swiss scientist Frederick
Micscher. Sir Alec. J. Jeffereys discovered the use of DNA for forensic analysis in 1984.It
was first used in England by the police in the famous Enderby case involving two girls who
had been raped and murdered.

DNA tests are highly effective because every person’s DNA is unique except identical twins.
The greatest asset of DNA is that it is so specific to every individual that it cannot be
tampered. DNA tests can be used to establish parentage of a child, detect crimes, and

8
Varad Deore, Adultery: A Provision Redundant in Criminal Law in Changed Social and Legal Context; (Available
at http://www.legalserviceindia.com/article/l291-Adultery.html )

8
identify mutilated dead corpses. They are of immense help in criminal justice administration
and in some civil disputes like succession, inheritance etc.9

Here, introduction and admission of DNA technology can actually be fruitful, to meet the
ends of the justice. The development in DNA based studies is vast, complex and expanding
on a monthly basis. Inspite of repeated legal challenges, mainly in the USA, no two persons
other then identical twins, have been found to have identical DNA profiles, the possible
number of presumptions far exceeding the population of the world.

In paternity testing, DNA now allows positive determination of parenthood, rather than the
statistical likelihood or exclusion offered by blood typing in former years. Further, there is
one more recent technique whose probability of giving exact result is 99.9%. It is HLA
testing. Blood group antigens, serum proteins, erythrocyte enzymes and salivary proteins
are of importance in ascertaining the parentage with certainly and all of them are heritable
characteristics, followed accepting genetic principles. When conventional blood group
systems like ABO, Rh, MN, etc. are used in disputed parentage cases; the possibility of
fixing the parentage cases, the possibility of fixing of HLA testing is used along with the
conventional blood group systems in disputing parentage cases, the probability of fixing the
parentage is about 99.9%.

Article 21 of the Constitution confers the fundamental right of life and personal liberty. In
India chastity of the woman and paternity of the child hold much value and are issues of
honour. No person in India will ever tolerate, cherish or like to be called a bastard nor will a
woman tolerate to be called unchaste. These are parts of the dignity and honour for each
man and woman in law. Article 21 confers right to life and provides that no person shall be
deprived of his life or personal liberty except according to the due procedure established by
law. The right to personal liberty is also very important. To compel a person to undergo him
or herself to a medical test would interfere with the fundamental right.

Where adultery is to be established merely on the basis of the birth of an illegitimate child,
it must be proved that the child had been born, as a. result of adulterous intercourse. The
presumption is always in favour of legitimacy. To brand a child as illegitimate, it must be
satisfactorily established that the birth of the child was clearly the result of an adulterous
intercourse. Presumption of legitimacy being highly favoured by law, the proof of adulterous
attitude must be clear and satisfactory. The party who alleges it must prove it. It is highly
unsafe to base a finding of adultery and illegitimacy in the absence of clear and satisfactory
evidence. The standard of proof required for proving adultery and illegitimacy is similar to
the standard required for proof of guilt in a criminal case.

According to Mohammedan Law, a Mohammedan child, born within six months of the
parents' marriage, would be presumed to be illegitimate under the Mohammedan law, it
would be presumed to be legitimate under this section, if it were born during the
continuance of the parent's marriage. According to Hindu law, to render a child legitimate,
the procreation should take place after marriage. Ti is enough that the birth takes place
after marriage, though the procreation was before.

This section consists of two parts. The, first part deals with the birth of a child during the
continuance of a valid-marriage between a man and a woman; and the second part deals
with the birth of a child during 280 days after the dissolution of that marriage. For example
if the pregnancy of a woman was concealed, and a child was born to her within about four

9
http://www.legalserviceindia.com/article/l153-Forensic-Evidence.html

9
months of her marriage and she had been-driven out by the husband within a few days
after marriage, it was held that no presumption can be raised inside this section.

Where a child is born during the continuance of a marriage, and the husband disowning the
child fails to establish non-access to his wife beyond all reasonable doubts, then the
presumption of legitimacy is available. In Prem Singh v Dalla Devi Where the marriage
subsisted between the parties and the wife said that she had sexual intercourse with her
husband on 28 December 1979 and, the child was born on 2 August 1980, and the husband
failed to prove non-access, it was held that the evidence by the husband for disproving
legitimacy and that he did not have sexual intercourse with the wife on 28 December 1979
alleged by the wife, is barred.

In the case of Sharmila Devi v Shankar Das , the two spouses had access to each other
after marriage for a number of days and the child was born after six months of the
marriage. The Himachal Pradesh High Court held the child' as legitimate child. A
Mohammedan child born during the continuance of a valid marriage between its parents
would be presumed to be legitimate, even before the ruksati ceremony.

Where evidence of access is given, it requires the strongest evidence of non-intercourse or

other proof beyond reasonable doubt to justify a judgment of illegitimacy. The presumption
is rebbuttable. In Ganashyam Chaturvedi v Radha Devi Where the child is born
marriage, after 175 days after first intercourse and access of husband to the wife before
marriage is not proved, the presumption under s 112 of the Evidence Act is not available
and the child must be held an illegitimate child.

The word 'begotten' used in s 112 of the Act means 'conceived' and not 'born'. The
emphasis on birth during wedlock as against conception is there in s 112 for the reason that
as a general rule, it is the birth after marriage, which confers legitimacy on a child until its
contrary is not proved.

Under the second part of the section, a child born within 280 days from the dissolution of a
valid marriage will be presumed to be illegitimate. So in the case of widowhood, though
cohabitation is not possible, the law will presume in favour of chastity of a woman and
legitimacy of a child.

Where a child born some 365 days after the last period at which he could have been
begotten by the husband of his mother and 357 days after the death of the husband, was
set as legitimate, it was held that although such period of gestation was perhaps not
absolutely beyond the bounds of possibility, yet there being evidence that the mother had
been married to her husband for 10 years without having had any children by him, and also
evidence which pointed strongly to the conclusion of immorality on the part of the mother,
the only reasonable finding was the illegitimacy of the child.

The presumption of a child born within 280 days of the dissolution of the marriage, being
legitimate is subject to the condition that the woman remains unmarried. If the woman
remarries before the birth of the child, the second part of the section would have no
application. The child would be presumed to be the legitimate child of the second husband
under the first part of the section unless it is shown that the second husband had no access
to the woman at any time when the child could have been begotten.

10
When a child was born within 5 months after the disillusionment of marriage presumption of
legitimacy of the child arises,. The burden shift on the husband to prove that it was
impossible to have access with the divorced wife and so it is a illegitimate child

In this rule 'access' and 'non-access' mean the existence or non-existence of opportunities
for sexual intercourse; it does not mean actual cohabitation. The section has to be applied
with reference to the facts and circumstances of each case .so it refers from one case to
another. The word 'access' in this section means 'effective access'. Physical incapacity to
procreate, if established, amounts to non-access within the meaning of this section. The
presumption under this section is the conclusive presumption of law. It can be only
displaced by the proof of non access between the parties to the marriage when the child
could have begotten. One can prove non-access saying that he had no intercourse with his
wife and he is impotent.

Indian courts have time and again held that the evidence for proving non-access must be
strong, distinct, satisfactory and conclusive. DNA tests can be strong evidence as they are
correct up to 99% if positive and 100% if negative.

Problems with the Section

The gravest problem with the Section is it presumes that sexual intercourse is an absolute
essential for the conception of a child in a woman’s womb. This presumption is expressed in
the non-access clause of the Section i.e. the Section says if the man could not possibly have
had sexual intercourse, it cannot be his child. Several modern scientific developments such
as sperm banks, surrogacy, IVF etc. have done away with the necessity of a sexual
intercourse i.e. the physical presence of a man near a woman for the conception of a child.

The Case of Identical Twins

These twins share an identical genetic make-up and so their DNA is identical and
indistinguishable from one another. There is no test that can determine which is the biological
father of a child. Unless one is excluded for some reason, either could be the father and that is all
that DNA testing can prove. The court would have to disregard DNA results and use other means
to determine paternity. 10

Section 112, Sperm Banks and Artificial Insemination

A sperm bank or cryobank is a facility that collects and stores human sperm mainly from
sperm donors. Donor sperm may be supplied by the sperm bank directly to the recipient to
enable a woman to perform her own artificial insemination. Artificial insemination is the

10
http://www.abcarticledirectory.com/Article/DNA-Paternity-Testing-of-Related-Potential-Fathers/208256

11
process by which sperm is placed into the reproductive tract of a female for the purpose of
impregnating the female by using means other than sexual intercourse.
Alternatively, donor sperm can be supplied by a sperm bank through a registered medical
practitioner who will perform an appropriate method of insemination. A pregnancy achieved
using donor sperm is no different from a pregnancy achieved by sexual intercourse. Several
such sperm banks exist in India. 11

Consider a case where a husband who has donated his sperm in a sperm bank goes away
from his wife at a distance from which sexual intercourse with her is impossible. During this
time if the wife uses his sperm from the bank and conceives a child, according to this
section in its present form, the husband may easily prove the child born is illegitimate.
Also, in a case where a husband donates his sperm and then becomes impotent from some
disease, if his wife has used the donated sperm for conceiving a child even after their
marriage, the husband may easily prove that the child is illegitimate. Even though he never
disputed his fatherhood, world famous cyclist Lance Armstrong’s son was born after he
became impotent by prostate cancer from the sperm he had donated before his operation. 12

No doubt, the section on all these fronts yields absurd results and is grossly inadequate.

Section 112 and Surrogacy

Surrogacy is by and large of three types. For the purposes of this article we are only
concerned with the one with an arrangement whereby a woman agrees to become pregnant
and deliver a child for a contracted party as a gestational carrier to deliver after having
been implanted with an embryo.13 Here, one must understand that the biological mother
and the woman giving birth to the child through her womb are two different women.

Of all others, when Section 112 is applied on this particular medical procedure, it yields the
most absurd results. If a Mr. and Mrs. Y for instance contracted a Mrs. Z for delivering their
baby, according to this section the child would be presumed to be a legitimate child of Mr. Z
i.e. Mrs. Z’s husband who may have nothing whatsoever to do with the transaction! What is
worse is that according to the present interpretation, it will be deemed to be his child simply
if and because he had an opportunity to have sexual intercourse with his own wife. He will
have no defense.
11
http://en.wikipedia.org/wiki/Sperm_bank (Last browsed on 16th feb 2011)
12
Lance Armstrong; It’s Not About the Bike: My Journey Back to Life; Putnam (2000)

13
http://en.wikipedia.org/wiki/Surrogacy (Last browsed on July 6, 2010)

12
It may also not be out of place to mention here that it may happen that the embryo which
the doctor had impregnated the surrogate mother with may get miscarried and the
surrogate mother may be pregnant with her own child. 14 Under such circumstances it is
impossible to know who is the mother of the child till a DNA test of the child born is taken.
Point being, even the maternity of the child cannot now be taken to be certain and there
may be a dispute regarding the same.

The “continuance of a valid marriage” clause

In a case where a widow uses her dead husband’s donated sperm to get pregnant 280 days
after her husband’s death, since this section requires “continuance of a valid marriage” and
the child, in this case will unfortunately be born after the marriage has ceased, it can easily
be proved to be illegitimate.
Also in a case where a divorced lady remarried another man and then delivered a baby
within 280 days of the dissolution of the first marriage but during the continuance of the
second marriage, the child was declared to be a legitimate child of the second husband. 15

280 Days Clause

This section also talks about the time period as to when the child is supposed to be born but
it an entirely medical issue. Even, medical experts cannot tell us the exact day and time, as
to when a child will be born. They could only suggest a certain probable time period. If we
go through the wordings of the section then a time of 280 days is being seems to be
settled. But, there is no rational behind this as why not, 260 or 300 days. And, even if, the
medical experts do not have any firm stand on this point, then from where did the legal
jurists brought the calculated numbers of 280 days. It is to be kept mind that the birth of a
child is a biological process and not a mathematically equation.

If we go through the case laws, on this point, it is led enough that different Courts have
different views regarding this issue. If we look into ‘Modi’s Medical Jurisprudence and
Toxicology’ , under heading, ‘The Maximum Period of Pregnancy’, various periods have
been mentioned, starting from 315 days to a period of about 349 days. Another
jurisprudential authority by Dr. Lyon in ‘Medical Jurisprudence for India’, it is stated that;

‘What is the longest period, which in natural human gestation, may be:
1. That this may be 296 days.

14
A Marathi TV Series titled “Anubandha” primarily based on this situation is presently being aired on the
channel Zee TV Marathi

15
Sethu v. Palani, 49 M 553; Pal Singh v. Jagir, 7 L 368

13
2. Most authorities agree in considering that the interval may be as long as 44 weeks or 308
days; but it might also extend to 311 days.

Some of the authorities consider that the interval may extend to 46 weeks-315 to 322
days.16

Importance and relevance of forensic science and DNA technology in legal

system

Forensic science, as a scientific discipline, functioning within the parameters of the legal
system not only provides guidance in criminal and civil investigation but also supplies the
courts accurate information about all the attending features of identification of criminals.
Actually, the recent advancement in modern biological research has revolutionised forensic
science resulting in a radical impact on the administration of justice. In the new scientific
era, the emergence of DNA testing changes the role of forensic science in the legal system
from passive spectator to the main key player.

 As such, the chemical structure of the DNA in the cells of each individual is the sole
determining factor to identify one separately from another except the “genetically identical
twins”. The discovery of modern genetic science can be used in identification of criminals in
criminal cases by analysing various objects recovered on the crime spot like any body fluid,
hair root, saliva, fibres etc. which are associated with the crime and accurately linked to the
perpetrator of the crime. Actually, this technology is utilised as a new form of circumstantial
evidence, which is placed on a higher footing than the direct and ocular evidence because of
its objectivity, scientific accuracy, infallibility and impartial character.

 Moreover, this new technology is also extensively applied in civil cases in order to
determine paternity or maternity disputes, baby-exchanging cases, succession cases,
maintenance proceedings and matrimonial disputes etc. For instance, in case of disputed
paternity of a child, mere comparison of DNA obtained from the body fluid or body tissues
of the child with his father and mother can offer infallible evidence of biological parentage
within a short time. No other evidence of corroboration is required because timely medical
examination and proper sampling of body fluids followed by quality forensic examination
can offer irrefutable evidence, circumventing the need of prolonged argument in courts of
law.

Paternity test in U.K. 

16
http://www.legalserviceindia.com/articles/tdna.htm

14
In England, where keeping pace with modern thinking on the continuing and shared
responsibility of parenthood, The Family Reforms Act,1969 was replaced by The Family
Reforms Act, 1987 which enabled the Judiciary to determine the parentage rather than
paternity. The U.K has also recognized the importance of DNA technology and
has enacted Data Protection Act, 1998. In U.K DNA developed as an investigative
tool. A boy from Ghana, born in U.K wanted to join his family in U.K, the authorities denied
his entry because they were not satisfied that he was the son of alleged mother. Through
DNA test it was found that he was the son of alleged mother and thus he was allowed to
stay with his mother.17

Paternity test in U.S.A.

 As early in 1921 Paternity Exclusion Test was published in U.S.A. by Otlerbein(an year
before Dyke did it inEngland). Paternity exclusion test was carried out in 1933 also by
Wiener. Later on Justice Steinbrink of New York Supreme Court rules that for deciding
paternity blood test may be carried out. It opened a flood gates and several states passed
legislation enabling and empowering Courts to order blood test for deciding paternity
disputes. In U.K.in cases involving paternity or maternity disputes the technology of DNA
fingerprinting was applied frequently in late eighties. in a case, a girl claimed that she was
pregnant by a person who was killed in an automobile accident. A question arose as to
whether the child was entitled to succeed the estate of the deceased or not. After the child
was born DNA prints were prepared from the blood sample of the infant. DNA prints were
also prepared from the stored blood of the father. The two samples were matched and it
was found that the deceased person was not the father of the child and hence the child
could not inherent the estate left by his alleged father. In February, 1988 in Maryland a
automobile mechanic discovered a dead body of an infant on the rear seat of the car which
he was repairing. The tissue samples of the women, owner of the car and the dead infant
were taken and were subjected to DNA tests. The tests show that the owner of the car was
the mother of the infant, but she was not charged with the murder as the child was still
born.18

Paternity test in India

17
www.symlaw.ac.in
18
1994 Cri LJ Jour 1

15
 In India DNA testing got legal validity in 1989.19 In our country, initially the judges took
very conservative views regarding the application of DNA evidence in resolving the
paternity/maternity dispute cases. Indian judges often face a debatable question in deciding
matters of paternal responsibility of whether the law should give priority to biological
parentage over social parentage or not.

Parentage identification deals with paternity/maternity legitimacy of the child etc. in child
abandonment cases DNA test is necessary to prove child’s maternity. Property disputes,
inheritance, maintenance, rape and many other issues. DNA is necessary to reach the
finality and justness of the issue. It is however not clear whether DNA test can be used in
cases governed by Sec.112 of the Indian Evidence Act, 1872.
 The raison d’etre under the Evidence Act is against the legitimization of a child and is
based on public policy and that a child should not suffer on account of lapses of parents. It
is also the normative legislative intention that when certain fact is considered as conclusive
proof of another fact, the judiciary generally disables the party in disrupting in such proof.
The only exception provided in Indian Evidence Act is in the form of an outlet to a party,
who wants to escape from the rigor of that conclusiveness. In such cases, it’s the DNA test
which helps the Courts to decide on the contentious issue based on aspect of
conclusiveness. As in The Hon’ble Supreme Court in Gautam Kundu Vs State of West
Bengal20  In the said case, the father disputed paternity and demanded blood grouping test
to determine parentage for the purpose of deciding whether a child is entitled to get
maintenance under Section 125 of the Code of Criminal Procedure from him. In this context,
the Supreme Court held that where purpose of the application was nothing more than to
avoid payment of maintenance, without making out any ground whatever to have recourse
to the test, the application for blood test couldn’t be accepted. And laid
some guidelines regarding permissibility of blood tests to prove paternity:--

 
1. That the Courts in India cannot order blood test as a matter of course.
2. Whenever applications are made for such prayers in order to have roving inquiry,
the prayer for the blood test cannot be entertained.
3. There must be a strong prima facie case in that the husband must establish no
access in order to dispel the presumption arising under Sec.112 of Evidence Act.
4. The court must carefully examine as to what would be the consequences of
ordering the blood test.

5. No one can be compelled to give sample for analysis.

 The Rule of Law based on the dictates of the Justice has always made the Courts
inclined towards upholding the legitimacy of the child, unless the facts are so conclusive and
clinching as to necessarily warrant a finding that the child could not at all have been
begotten to the father and as such the legitimacy of the child is rank justice to the father.
Courts have always desisted from lightly or hastily rendering a verdict and that too, on the
basis of slender material, which will have the effect of branding a child as a bastard and his
mother as unchaste women. In view of the provision of Sec.112 of the Evidence Act,

19
Anil Kumar v. Turaka Kondala Rao ,1998 Cri.LJ 4279(AP)
20
AIR 1993 SC 2259

16
there is no scope of permitting the husband to avail of blood test for dislodging the
presumption of legitimacy and paternity arising out of the Section. Blood group test to
determine the paternity of a child born during wedlock is not permissible.
 Presumption under Section 112 of Evidence Act remains there even after DNA
test- Kamti Devi v. Poshi Ram21

 If husband and wife were living together during the time of conception, but the DNA test
revealed that the child was not born to the husband, the conclusiveness in law would
remain irributtable. Law leans in favor of the innocent child being bastardized, if his mother
and her spouse were living together during the time of conception.
 In Banarsi Dass22, reiterating its view in Kamti Devi 23, the apex court held that DNA test
is not to be directed as matter of routine and only in deserving cases such as direction can
be given. The Court gave priority to social parentage over biological parentage and thereby
rejected DNA evidence by observing that though the result of a genuine DNA test is said to
be scientifically accurate it is not enough to escape from the conclusiveness of Section 112
of the Evidence Act, 1872.
In Perumal Nadar v. Ponnu Swami 24-“Blood test cannot show positive any man is the
father but can show positively that a given man could or could not be the father. It is
obviously the latter aspect that puts the blood test as the most valuable in determining the
paternity. In Raghunath v. Sharadbhai25Bombay High Court observed that blood grouping
tests have their limitations. As they cannot possibly establish paternity, but can only
indicate possibilities. In Sadashiv Mallikarjun Khedarkar v. Nandini Sadasiv
Khedarker26R. J. Vidyanath J. observed:“There may be instances where the husband and
wife are living together and the wife may have gone astray and then a delivered a child
through illicit connection. But in the view of the legal presumption Under Sec.112 of the
Indian Evidence Act,1872 the husband cannot be allowed to prove that the child is not
brown to him science husband and wife are living together, even if it is proved that wife had
some illicit relationship with another person. What should be done in such case is a question
death has cropped up in my mind… but if we go by rigor or presumption under Sec.112 of
the Evidence act no husband can be permitted to prove that the child born to the wife is not
his, if the husband and the wife are together even if wife is proved to be living in adultery.
In some cases it has been held that courts are seized to inherent powers, which can be
exercised ex debito justitiae. Bombay High court in this case, it was further held that the
court has power to direct blood examination but it should not be done as a matter of course
or to have a roving inquiry, the Bombay High Court even felt that there should be a suitable

21
AIR 2001 SC 2226

22
Banarsi Dass v. Teeku Datta (2005)4 SCC 449

23
Ibid

24
AIR 1971 SC 2352

25
AIR 1986 Bombay 386

26
1995 Cri L J 4090 (Bom) at 4093

17
amendment by the legislature and after nothing that no body can be compelled to give
blood samples, it was held that the court can give direction but cannot compel giving of
blood sample. In Sanjeera v. Sahm27(a direction to undergo a DNA  test was
given)However it was already admitted by the mother that the child was born out of
wedlock and there had been an illicit relationship. Moreover the respondent had expressed
willingness to undergo the test at the petitioner’s cost and there was no question of
compulsion. In S.Thangavelu v. S.Kannammal 28 Court can order DNA test in cases of
maintenance, matrimonial matters and succession. Court has ample powers to direct parties
to undergo medical tests or give sample of blood for DNA test.
In Sharda v. Dharmpal29 the Supreme Court took a very positive view regarding
importance as well as admissibility of DNA evidence in matrimonial cases. The Supreme
Court categorically observed that: (SCC p. 524, para 81)

“1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the court would not be in violation of the right to personal
liberty under Article 21 of the Indian Constitution.

3. However, the court should exercise such a power if the applicant has a strong prima facie
case and there is sufficient material before the court. If despite the order of the court, the
respondent refuses to submit himself to medical examination, the court will be entitled to
draw an adverse inference against him.”

In the aforesaid case, the Supreme Court by distinguishing its earlier decision in Goutam
Kundu case5 further held that right to privacy under Article 21 of the Constitution is not an
absolute right and in a case of conflict between the fundamental rights of the two parties,
the court has to strike balance between the competing rights.

In a Recent Judgement a different view was adopted.A Congress leader N.D. Tiwari is locked
in a paternity suit. A single-judge bench of the high court had on December 23 asked
Defendant to undergo a DNA test on the paternity suit filed by Rohit Shekhar who claims to
be his biological son born out of the leader's alleged relationship with his mother Ujjawala
Sharma who is also a Congress activist

The court had asked him to undergo the test saying that wider interest of a child of not
being declared a bastard has to be kept in mind.The politician then approached a division
bench of the High Court which refused to grant him relief on the DNA test and also imposed
a cost of Rs 25,000.Tiwari, who has held the posts of Chief Minister of undivided Uttar
Pradesh and later Uttarakhand, had opposed the paternity suit filed by Shekhar.

27
2000 Cri L J 1208(Ker). No question of compiusion ariases in the case of preserved foetus and direction to conduct paternity
test can be made- Alika Khosal Vs. Thomas Mathew, Manu/DE/1842/2001

28
AIR 2005 MAD 106(107)

29
(2003) 4 SCC 493

18
He was forced to resign as Governor in the midst of allegations of sexual misconduct, had
countered the charges claiming that he never had any physical relationship with Ujjawala,
who is also a Congress activist, and Shekhar was not entitled to seek a DNA test as a
matter of right.

The high court had Feb 10 dismissed Tiwari's petition challenging the DNA test order
"The High Court has also erred in not appreciating that the law of scientific tests is not
always 100 percent foolproof," he said contending that the court erred in looking only at the
purported interest of the child while totally ignoring the concept of balancing the same with
his rights.30

Later it was proved by the biological test that Shekhar was his legitimate son. This was held
to be a leading landmark judgment towards modernization of the constitution as per the
changing demands of the time which proves the flexibility of our law which can be easily
molded so as to serve the ends of the justice.

Conclusion
 The time for denial of admitting DNA evidence is over. We know that the present system
has identifiable flaws. Law has to grow in order to satisfy the need of the fast changing
society and keep abreast with the scientific developments taking place in the country. The
courts are very cautious in following for this test as they think, that may go against the
basic principles of the Human Rights, as the order for such test may interfere with the
personal liberty of that person guaranteed under Article 21 of the constitution, 31which must

30
http://netindian.in/news/2011/02/25/00011267/hc-denies-reprieve-n-d-tiwari-paternity-suit-case

31
Art.21 says – No person shall be deprived of his life and personal liberty except according to the procedure
established by law.

19
be just, fair and reasonable one.32 The courts also feel that such an order may violate the
right of an accused person protected under Art. 20 (3) 33of the Constitution .I most humbly
feel that this is a one sided approach of the court. Will it not be a violation of Human Rights
in case of a child whose father denies his acceptance as a biological father? In such a
delicate situation which father i.e. whether societal or biological shall have the right as well
as the duty towards the child. Will the child not have the right to see that his or her Human
Rights should also be protected and overlooked by the courts? 34 Some positive steps have
been taken by the Government of India after a long time by proposing to adopt DNA tests in
matters relating to paternity disputes under section 112 of the Evidence Act. The Law
Commission of India in its 185th report has recommended Indian Evidence Act (Amendment)
Bill, 2003 which makes provision for DNA tests in paternity disputes by the consent of the
man, and in case of child by the permission of the Court. The Parliament has already
established Advisory Committee to look into some of these aspects. One hopes this is sorted
out at the earliest so that we can proceed with full swiftness on this path in the furtherance
of truth. Then only the real meaning of “Satyamev Jayate” can be really manifested.35

 So, a final solution to all this dilemma and uncertainty can be the DNA mapping and
comparison of DNA of a child and the parents. In the recent case of State through C.B.I. v.
Amaramani Tripathi the paternity of a six months old fetus in the womb of deceased was
conclusively established with the help of DNA test. Further, the Courts, these days, is
heavily relying on scientific proofs, in the cases of murder and rape. Even there are cases
where the conviction is made by following the medical evidences. So, it is high-time that the
scientific aptitude should be brought in the issue of determination of legitimacy of a child.

 It should be remembered that the law directly deals with basic complex human problems,
which are not of mathematical precision, and the fate of every case depends upon its own
factual matrix. Thus, scientific evidences like DNA testing are one of the means to achieve
the main goal i.e. the “truth” and it is not an end in itself. However, we have to modify our
administration of justice system remaining in the existing framework to the effect that we
can effectively utilise the benefit of modern scientific and technological advancement.

32
Maneka Gandhi v. Union of India AIR 1978 SC 597

33
Art.20 (3) Says – No, person accused of any offence shall be compelled to be a witness against himself
34
2007 Cri L J jour
35
Supra note 17

20
 “Law must be stable. But not stand still.”

BIBLIOGRAPHY

 The Law Of Evidence, Batuk Lal, 19th ed. Central Law Agency
 http://www.airwebworld.com/articles/index.php?article=1428
 Hindu Marriage Act,1955

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 Sir Harris Nicholas; A Treatise on the Law on Adulterine Bastardy, with a Report of
the Banbury Case, and all Other Cases bearing on the Subject

 Varad Deore, Adultery: A Provision Redundant in Criminal Law in Changed Social and
Legal Context;

 http://www.legalserviceindia.com/article/l291-Adultery.html
 http://www.legalserviceindia.com/article/l153-Forensic-Evidence.html
 http://www.abcarticledirectory.com/Article/DNA-Paternity-Testing-of-Related-
Potential-Fathers/208256
 http://en.wikipedia.org/wiki/Sperm_bank
 Lance Armstrong; It’s Not About the Bike: My Journey Back to Life; Putnam (2000)
 http://en.wikipedia.org/wiki/Surrogacy
 http://www.legalserviceindia.com/articles/tdna.htm
 www.symlaw.ac.in
 http://netindian.in/news/2011/02/25/00011267/hc-denies-reprieve-n-d-tiwari-
paternity-suit-case
 Indian Constitution (Bareact)

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