NEW LAW COLLEGE

Name: Karishma Nilesh Shah

Class: T.Y.LLB ‘D’

Roll No.: 349

Subject: Indian Evidence Act

LEGAL VALIDITY OF DNA TEST IN EVIDENCE ACT WITH LIGHT OF CASES

Page
Topic
Number
Introduction 3
Legal definition of DNA 4
What is DNA Paternity testing 5
Legality of DNA Paternity testing 5
Paternity test in India 5
How DNA fingerprinting is done? 6
DNA testing and the Indian legal system 8
Suggestion 11
Conclusion 11

Page 2 of 12
1. INTRODUCTION

The Indian Evidence (Amendment) Bill, 2003 has been proposed on the recommendation of the 185th
Law Commission Report. The bill provides for DNA tests in paternity disputes. Scientific evidence
frequently plays a key part in both civil and criminal trials and the scientific investigation of evidence left
at the crime scene can seem more persuasive to a court than the testimony of eyewitnesses. Several
techniques have been developed for this purpose, simple example of which is fingerprints of an
individual. One of the newest forms of forensic evidence is DNA Fingerprinting, which uses material
from which chromosomes are made to identify individuals positively. The use of DNA evidence is
anticipated to become a universal place in the 21st century. It is considered to be a major breakthrough in
forensic science in this century. It has been subjected to the most comprehensive, scientific examination
as no other twig of forensic science, and has currently established itself as one of the best with mounting
applications. It is now a well-recognized technique, which is not only used in numerous areas of research
in modern molecular biology and genetics but also finding prospective applications in our day-to-day life.
DNA fingerprinting is based on the principle that the genetic makeup of every individual is different from
the others but is unique and idiosyncratic to an individual. DNA fingerprinting is the only definite,
positive and permanent identification method of a person as one’s DNA neither changes during one’s
lifetime. DNA testing takes advantage of the fact that, with the exception of identical twins, the genetic
material -DNA- of each person is unique. DNA evidence, like fingerprint evidence, offers prosecutors
important new tools for the identification and apprehension of some of the most violent perpetrators. At
the same time, DNA aids the search for truth by exonerating the innocent. DNA fingerprints are useful in
several applications of human health care research, as well as in the justice system. They are used to
diagnose inherited disorders in both prenatal and newborn babies in hospitals around the world. Research
programs to establish inherited disorders on the chromosomes depend on the information contained in
DNA fingerprints. They are also used to link suspects to biological evidence. Another use of DNA
fingerprints in the court system is to establish paternity in custody and child support litigation. Advances
in technology are leading to novel uses of DNA fingerprinting almost every day.

Page 3 of 12
2. Legal Definition of DNA

DNA test or ‘DNA Profiling’ as popularly known is a technique in which a sample of DNA is run
through a laboratory assay to generate information about it, looking specifically for DNA which could
identify the source of the sample, or be used as a base of comparison between two samples. 

Among the many new tools that science has provided for the analysis of forensic evidence is the powerful
and controversial analysis of deoxyribonucleic acid, or DNA, the material that makes up the genetic code
of most organisms. DNA analysis, also called DNA typing or DNA profiling, examines DNA found in
physical evidence such as blood, hair, and semen, and determines whether it can be matched to DNA
taken from specific individuals. DNA analysis has become a common form of evidence in criminal trials.
It is also used in civil litigation, particularly in cases involving the determination of Paternity of Identity.

Interpreting Results of DNA Analysis in Criminal Investigation-

Inclusion- When the DNA profile of a known individual (A victim or suspect) matches the DNA profile
from the crime scene evidence, the individual is “included” as a potential source of that evidence.

Exclusion- When the DNA profile from an individual (A victim or suspect) does not match the DNA
profile generated from the crime scene evidence, the referenced individual is “excluded” as the donor of
the evidence.

Inconclusive- Inconclusive results indicate that DNA testing did not produce information that would
allow an individual to be either included or excluded as the source of the biological evidence.

Page 4 of 12
3. WHAT IS DNA PATERNITY TESTING?

We all have a unique DNA pattern that is inherited from our biological parents and is similar to theirs in
molecular structure and genetic code. Because of this similarity, the DNA can be used to test and
conclusively determine biological kinship. When the testing is done to determine who the father is, it is
known as DNA Paternity Testing. It is about 99.99% conclusive. It is usually not necessary to do
maternity testing. DNA Paternity Testing is now widely used for scientific purposes, to determine
paternity concerns, or to settle legal disputes.

4. Legality of DNA Paternity Testing

Different countries around the world have different rules and regulations regarding DNA Paternity
Testing. But in a majority of cases, it is not legal to conduct a DNA Paternity Test without the prior
permission of the individuals concerned.

DNA Paternity Testing done for personal purposes at home using DNA Testing Kits cannot be used as
evidence in a legal court. For legal purposes, a Chain of Custody documentation process that follows due
legal procedures is required.

5. Paternity Test in India

The wordings of Section 112 of Indian Evidence Act start, 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’. From 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. In India DNA testing got legal
validity in 1989. 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.

Page 5 of 12
It is however not clear whether DNA test can be used in cases governed by Sec.112 of the Indian
Evidence Act, 1872. 

As in The Hon’ble Supreme Court in Gautam Kundu v. State of West Bengal1 laid

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.2

6. How DNA Fingerprint is done?

In DNA profiling process firstly, the DNA is isolated from cells or tissues of the body in which the
amounts of DNA found at the root of one hair is sufficient. After chemically extracting the intact DNA
from the sample restriction enzymes are used to cut DNA at specific places. The DNA pieces are then
sorted out according to size by sieving technique called electrophoresis in an agarose gel. The DNA
fragments are blotted from the gel onto a nylon membrane. This process is known as Southern Blotting.
On addition of radioactive or colored probe to the nylon sheet a pattern called the DNA fingerprint is
produced. The final DNA fingerprint is built by using several probes (5-15 or more) simultaneously.
Where the samples are inadequate and the quality poor, this technique has been found to be less
satisfactory. Therefore, a new technology was developed to replicate the inadequate sample, by
synthesizing new DNA from the existing one to obtain sufficient quantities for analysis. This technique is

1
(1993) 3 SCC 418.
2
www.ijhssi.org/papers/v2(7)/Version-3/C0273015021.pdf.
Page 6 of 12
called Polymerase Chain Reaction (PCR) and the testing PCR is known as PCR-STR (Short Tandem
Repeat). It can produce quick, valuable results with degraded specimens.

In India this technique is in its infancy. Centre for DNA fingerprinting and Diagnostics (CDFD), Andhra
Pradesh Forensic Science Laboratory (APFSL), Centre for Cellular and Molecular Biology (CCMB),
Rajiv Gandhi Centre for Biotechnology (RGCB) are the major institutes where DNA fingerprinting is
done.

In a very important and recent judgment delivered by the Hon’ble Supreme Court of India in the case
of Sharda v. Dharmpal3 where the core question was, whether a party to a divorce proceeding can be
compelled to a medical examination. In this case an order for DNA test was opposed by the Respondent
on the ground that such an order violates his right to privacy. The three Judge bench of the Hon’ble
Supreme Court held that: “If for arriving at the satisfaction of the court and to protect the right of a party
to the list who may otherwise be found to be incapable of protecting his own interest, the court passes an
appropriate order, the question of such action being violative of Article 21 of the Constitution of India
would not arise. The court having regard to Article 21 of the Constitution of India must also see to it that
the right of a person to defend himself must be adequately protected.” It further held that if respondent
avoids such medical examination on the ground that it violates his/her right to privacy or for a matter
right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of
such cases become impossible to arrive at a conclusion. It was also said that if despite an order passed by
the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an
adverse inference would be made out. Section 114 of the Indian Evidence Act enables a Court to draw an
adverse inference if the party does not produce the relevant evidences in his power and possession.

The right of privacy under Article 21 was not absolute and such a direction could be given looking to the
conclusiveness of the DNA Test and its scientific accuracy.  If the applicant has a strong prima facie case
and there is sufficient material before the Court then it can order a person to undergo DNA test and
passing of such an order by the Court would not be in violation of the fight to personal liberty under
Article 21 of the Indian Constitution.  There is nothing brutal or offensive or shocking in taking the blood
sample for DNA test under the protective eye of law.

3
 (2003) 4 SCC 493.
Page 7 of 12
The constitutional mandate does not say that no person shall be deprived of his personal liberty under any
circumstances. On the contrary, if such deprivation of right or personal liberty is in accordance with the
procedure established by law, the same does not violate Article 21 of the Constitution of India.4 

7. DNA TEST AND THE INDIAN LEGAL SYSTEM

The application of DNA testing has been used in India for a long period of time. Sometimes, it has been
used to resolve certain question which sometimes becomes very difficult to resolve such as “Has the
crime been committed?”, “How and when was the crime committed?”, “Who committed the crime?”.
You must be aware of the incidents of the movies when an inspector finds something at the crime spot i.e.
blood, hair etc. Now what is the use of these material evidences in the investigation? The answer is very
simple, that these material evidences help them in determining as to who was actually present at the place
where the incident happened. DNA technology has also been used in the civil cases, to determine the
biological relationship between a two or sometimes three individual. Usually, it has been used to
determine the paternity of a person, where a person denies being the biological parent of a person. DNA
parentage testing may help a person in absolving him from the charge of being the biological parent of a
person, but it cannot be trusted to prove absolutely that a person is the child’s biological parent; however
it can provide a probability.

The admissibility of the DNA evidence before the court always depends on its accurate and proper
collection, preservation and documentation which can satisfy the court that the evidence which has been
put in front it is reliable. There is no specific legislation which is present in Indian which can provide
specific guidelines to the investigating agencies and the court, and the procedure to be adopted in the
cases involving DNA as its evidence. Moreover, there is no such specific provision under Indian
Evidence Act, 1872 and Code of Criminal Procedure 1973 to manage science and technology issues. Due
to lack of having any such provision, an investigation officer has to face much trouble in collecting
evidences which involves modern mechanism to prove the accused person guilty.5

Section 53 of Code of Criminal Procedure 1973 authorizes a police officer to get the assistance of a
medical practitioner in good faith for the purpose of the investigation. But, it doesn’t enable a
complainant to collect blood, semen etc for bringing the criminal charges against the accused. The
4
thelawgix.com/dna-tests-a-legal-perspective/
5
www.lawyersclubindia.com › Articles › Criminal Law.
Page 8 of 12
amendment of CrPC by the CrPC (Amendment) Act, 2005 has brought two new sections which
authorizes the investigating officer to collect DNA sample from the body of the accused and the victim
with the help of medical practitioner. These sections allow examination of person accused of rape by
medical practitioner and the medical examination of the rape victim respectively. But the admissibility of
these evidences has remained in a state of doubt as the opinion of the Supreme Court and various High
Courts in various decisions remained conflicting. Judges do not deny the scientific accuracy and
conclusiveness of DNA testing, but in some cases they do not admit these evidences on the ground of
legal or Constitutional Prohibition and sometimes for the public policy. There is an urgent need to re-
examine these sections and laws as there is no rule present in the Indian Evidence Act, 1872 and Code of
Criminal Procedure, 1973 to manage science and technology issues.

Many developed countries have been forced to change their legislations after the introduction of the DNA
testing in the legal system. There are certain provisions which are present in the Indian Evidence Act,
1872 such as section 112 which determine child’s parentage and states that a child born in a valid
marriage between a mother and a man within 280 days of the dissolution of the marriage, and the mother
remaining unmarried shows that the child belongs to the man, unless proved otherwise but again no
specific provision which would cover modern scientific techniques. DNA analysis is of utmost
importance in determining the paternity of a child in the cases of civil disputes. Need of this evidence is
most significant in the criminal cases, civil cases, and in the maintenance proceeding in the criminal
courts under section 125 of the CrPC.

The introduction of the DNA Technology has posed serious challenge to some legal and fundamental
rights of an individual such as ‘Right to Privacy’, ‘Right against self-incrimination’. And this is the most
important reason why courts sometimes are reluctant in accepting the evidences based on DNA
Technology. Right to Privacy has been included under Right to Life and Personal Liberty or Article 21 of
the Indian Constitution, and Article 20(3) provides Right against Self-Incrimination which protects an
accused person in criminal cases from providing evidence against himself or evidences which can make
him guilty. But it has been held by the Supreme Court on several occasions that Right to Life and
Personal Liberty is not an absolute Right. In Govid Singh v. State of Madhya Pradhes 6, Supreme
Court held that a fundamental right must be subject to restriction on the basis of compelling public
interest. In another case Kharak Singh v. State of Uttar Pradesh 7, Supreme Court held that Right to
Privacy is not a guaranteed right under our Constitution. It is clear from various decisions which have
6
1975 AIR 1378, 1975 SCR (3) 946.
7
1963 AIR 1295, 1964 SCR (1) 332.
Page 9 of 12
been delivered by the Supreme Court from time to time that the Right to Life and Personal Liberty which
has been guaranteed under our Indian Constitution is not an absolute one and it can be subject to some
restrictions. And it is on this basis that the constitutionality of the laws affecting Right to Life and
Personal Liberty are upheld by the Supreme Court which includes medical examination. And it is on this
basis that various courts in the Country have allowed DNA technology to be used in the investigation and
in producing evidence. To make sure that modern technologies can be used effectively, there is an urgent
need of a specific legislation which would provide the guidelines regulating DNA Testing in India.
The use of DNA Technology is very frequent in the cases related to paternity issues. It was the Delhi
High Court which set the precedent in 2008 for determining paternity in the case of child maintenance
suit. In this case a man filed a suit claiming that he was not the father of the child for whom his wife was
maintenance (Ravindra v. Sonam- Names have been kept anonymous by the court due to privacy
reasons). The suit was dismissed by the Trial Court, but it was allowed by the High Court and held
that “The parentage of the child can only be determined by a DNA test. The liability to pay maintenance
under section 125 CrPC can be avoided by the petitioner with respect to this child only if it is established
that he is not the biological son of the petitioner”. The decision was on the one hand was criticized by one
group of the society stating that it would harm the child in the question psychologically, while on the
other hand it has been supported by other group of the society stating that DNA Testing should be
allowed in the cases involving child maintenance. Admissibility of DNA technology in civil or criminal
suit would remain in question and these evidences should be examined by the courts very carefully.

The recent refusal of the Supreme Court to dismiss the Delhi High Court’s decision in the case of Rohit
Shekhar v. Narayan Dutt Tiwari & Anr.8, ordering Veteran Congress Leader N.D. Tiwari to
undergo the DNA test is very important from the viewpoint of the admissibility of such evidence. In this
case, Rohit Shekhar has claimed to be the biological son of N.D. Tiwari, but N.D. Tiwari is reluctant to
undergo such test stating that it would be the violation of his Right to Privacy and it would cause him
public humiliation. But Supreme Court rejected this point stating when the result of the test would not be
revealed to anyone and it would under a sealed envelope, there is no point of getting humiliated. Supreme
Court further stated that we want young man to get justice; he should not left without any remedy. It
would be very interesting to see that how courts in India would allow the admissibility of DNA
technology in the future.9

8. Suggestions

8
2012 (1) JCC 169.
9
www.legallyindia.com/.../admissibility-of-dna-technology-in-the-indian-l.
Page 10 of 12
Some broad suggestions emerging out of the study can be summarized as below-

1) The Government must make necessary provisions / amendments in the Cr. P. C. for the accused /
suspect to provide their DNA sample to the investigating agencies on the direction of competent
court.

2) The Government should take speedy measures to create data base of DNA based on ethnic group,
anthropological and regional considerations.

3) It is important to create a balance between the constitutional rights of an individual and the public
interest and bring accountability and transparency to the practice of DNA collection and testing.

9. CONCLUSION

The major scientific development in the area of DNA testing technology and its facts revelations has
solved many interacting crime related mysteries specially in the areas of rape, mass killing either because
of natural or human agencies and in solving civil disputes specially related with the paternity if the child
and in finding the identity of an individual. It has also been used in solving the cases of exchange of
babies in hospital wards. Before the advent of the ‘DNA technology’, the conventional method of blood
groupings test was being resorted to for the purpose of ascertaining the paternity of the child.  Now the
most common application of DNA testing technology has been in the area of parentage testing.

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, which
must be just, fair and reasonable one.  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 185 th report has recommended Indian
Evidence Act (Amendment) Bill, 2003 which makes provision for DNA tests in paternity disputes by the

Page 11 of 12
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.

Page 12 of 12