Well, encapsulating the terminology, DNA
(Deoxyribonucleic acid) which is
indeed multi-faceted is a gargantuan task. Importantly, it assists in
identifying, such as individuals and their blood relations in order to either
adjudge paternity issues or in the investigation of the crime. DNA is the
biological process by which peculiar characteristics are passed on from parents
to their offspring and is present in the nucleus of every living cell (only
white blood cells contains DNA) of the body.
Gignesthai of the DNA testing in Indian Legal System
It is Article 51A (h) and (j) of the Constitution of India, 1950 (Hereinafter
referred to as Constitution
) that states it shall be the fundamental duty
of every Indian Citizen to develop the scientific temper,
humanism and the spirit of the enquiry and reform
and to strive towards
excellence in all sphere of individual and collective activity so that the
nation constantly rises to higher levels of endeavor and achievements
Section 53 and Section 54 of the Code of Criminal Procedure, 1973
(Hereinafter referred to as 'CrPC') provides impliedly for the test of DNA.
Section 53 approaches with the accused's examination by the Medical Practitioner
at the appeal of the Police officer provided there are reasonable grounds as to
commission of the offence.
Section 54 deals with accused's examination by the
Medical Practitioner at the appeal of the accused himself. By the amendment in
2005, Section 53A was inserted that states the examination of a person accused
of rape by the Medical Practitioner at the appeal of the Police officer or even
the court can issue directions to the Police officer to collect samples as to
conduct DNA for the purpose of investigating further under sections 173(8) and
293(4) (e) of the CrPC.
Other than these provision herein mention before, Section 45 of the
Indian Evidence Act, 1872 (Hereinafter referred to as IEA
) deals with
Opinion of the Expert, it states:
When the Court has to form an opinion upon a
point of foreign law or of science or art, or as to identity of handwriting or
finger impressions, the opinions upon that point of persons specially skilled in
such foreign law, science or art, or in questions as to identity of handwriting
or finger impressions are relevant facts.
This Section Deals with Admissibility
of such opinion of the Expert. As far as the Admissibility is concerned, the
High Court of Andhra Pradesh had opined in Patangi Balaram Venkata Ganesh v
State of A.P 2003, that Opinion as to DNA by an expert is admissible in evidence
as it is perfect science.
DNA Testing in Criminal Proceedings
DNA testing complements the case tried in a criminal proceeding, reason being,
it vehemently point out towards the suspect who could have been a participes criminis.
When a crime is committed, the likelihood of finding traces of the perpetrator's
DNA at a crime scene is very high, from a variety of sources, id est, DNA can be
found in blood, sperm, skin cells, tissue, organs, muscle, brain cells, bone,
teeth, hair, saliva, mucus, perspiration, fingernails, urine, semen, hair root,
faeces, et cetera.
However, Article 21 of the Constitution incorporates Right to
Privacy as held in People's Union for Civil Liberties (PUCL) v. Union of India
1996, should be well balanced with the fact that the perpetrator should be
prosecuted and punished. In Sharda v. Dharampal
2003, the Honorable Supreme
Court stated that the Right to Privacy is not absolute.
The court's approval of
the order of the DNA testing would not be a violation of the right to personal
liberty for the fact that it can be curtailed by the procedure established by
law, and hence in proper cases the court can order testing as societal interest
overrides the interest of the individual in criminal cases. But it should be not
be in a routine manner, the court opined. Liberal Interpretations should be
given but that must not be beyond the line of justice.
Noting, In Sexual offence cases, Section 53A of the CrPC was inserted by the
2005 Amendment, that states, the examination of a person accused of rape is
conducted by the Medical Practitioner at the appeal of the Police officer, but,
Under Article 164A of CrPC to obtain biological sample and for conducting
medicolegal examination of rape survivor, informed consent is mandatory. Various
Courts in India held that the rape-victim cannot be compelled to undergo the DNA
test to find out the paternity of the child. Similar stand was taken by the
Honorable High Court of Allahabad in Gulafsa Begum v. State of U.P 2021.
For efficiently steering the vehicle of Criminal Jurisprudence, DNA test is a
cutting edge step toward managing ideal equity in instances of rapes and other
DNA Testing in Civil Proceedings
The Honorable Supreme Court in Gautam Kundu v. The State of W.B
, 1993 and
Mohd. Ghouse v. Noorunnisa Begum
, 2001 held that the Court cannot compel the
father to submit himself to DNA test in order to decide the paternity. However,
the above decision had unpropitious effect on the investigation apropos matters
of paternity. It is in the case of Banarasi Das v. Teeku Dutta
, 2005, wherein
the Honorable Supreme Court that the court has the discretion to order DNA
testing in civil matters howbeit in deserving matters only.
It is in light of the policy of preventing
destitution, vagrancy and bastardization. The purpose is to preserve the
legitimate paternity of the child and this is in line with the Constitutional
principles of Ex aequa et bono, id est, equity and good conscience.
However, the provision of Section 112 of the IEA has to keep in mind while
dealing with the question of paternity. Herein, the question of paternity is not
resolved as the crows flies with the DNA testing. Section 112 of IEA talks about
conclusive proof of legitimacy
, which is tilted in the favor of the child
providing them their Right to live a dignified life under Article 21 of the
Constitution and Right to Equality under Article 14 of the Constitution.
The burden to prove is upon the child that:
- That He/She was born to the mother who was lawfully married to his father
- That He/She was born to the mother during the continuance of marriage or
after the dissolution of marriage but within 280 days.
- That the mother was not married to anyone else in that period.
Proving the above
three parameter, as of yet will not prove the conclusivity, but reasonable
opportunity is given to the Father to prove Lack of access, if the father fails
in proving lack of access, id est, circumstances where sexual intercourse could
not have been possible, then the conclusive proof as to the legitimacy will be
raised against the father as per Section 12 read with Section 4 of the IEA, that
The only remedy with the Father is to file a Review Petition
under Order XLVII of the Civil Procedure Code, 1908 provided some new facts are
discovered or new evidence which even with due diligence could not have known to
It is only when the child could not prove Section 112 IEA the demand as to DNA
testing makes an appearance. Herein, the child has to prove a strong prima facie
case in his favor, and the court keeping in mind that if allowance order of DNA
testing is not given, it will cause a grave injustice to the child; the court
may in its judicial discretion allow DNA testing to prevent failure of justice.
On the same lines, even if Child is able to prove legitimate paternity under
Section 112 of IEA, the father can demand DNA testing showing strong prima facie
case. In Nandlal Wasudev Badwaik v. Lata Nandlal Badwaik
, 2014, the
Honorable Supreme Court held that DNA is scientific substantial evidence and
prevails over conclusive proof under section 112 of IEA
Concluding with, indeed, the origination of DNA has become an integral part of
the Justice Dispensation Mechanism.