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Relevancy of DNA: A Test for Paternity (Section 112, Indian Evidence Act)

One of the golden rules of the Indian Evidence Act is that the best evidence should be presented before the court of law to decide the matter being adjudicated. What evidence may be the best to prove the paternity of a child other than the DNA test itself? However, the Indian Constitution aims to provide justice to the needy and protect and secure the interests of the vulnerable of society. It may be against the interest of the state to allow suspicion in all cases of marriage where paternity is raised as a question.

Terming the women unchaste and of the child as a bastard may be common between such marriages. To control such a situation and to protect and secure the interest of women and children, the Indian Evidence Act, of 1872 (hereinafter referred to as IEA) lays down the presumption as to the legitimacy of children born out of a valid marriage.

Statutorily encoded Section 112 of the IEA provides that the child born out of a valid marriage will be presumed legitimate and no proof in contravention of such presumption can be presented. The court shall presume that the child born out of such marriage is legitimate making the husband the father of such child. This provision is based on the Latin Maxim "pate rest quem nuptioe demontrat" i.e. "he is the father whom the marriage indicates".

However, the principle of natural justice indicated in the Latin maxim "Audi Alteram Partem" i.e. both parties should be presented with a chance to tell their side of the story, obligated the maker of the provision to allow the other party to prove that he is not the father of such child. Section 112 of IEA lays down strong conclusive proof of legitimacy but it also provides for its rebuttable-ness in cases where the non-access between parties is proved. Non-access here means the absence of sexual intercourse between the husband and wife at the probable time when the child would have been begotten.

The best evidence to prove the legitimacy of the child in such cases where access has been disputed is to submit a DNA test result. Previously courts used to rely upon traditional evidence collected from the scene or presented before the court in reference to non-access, as the accuracy of DNA has been quite debatable. However, with the development of science and technology in the legal field, forensic science has contributed vastly to ensuring that justice is administered to those who are affected.

The reliability of DNA tests is no longer a question, and courts have administered its importance in both the criminal justice system and the paternity test. We will further discuss in detail the presumption as to the legitimacy of the child and the relevancy of DNA tests for rebutting such presumption of paternity.

Presumption as to the legitimacy of a child

The presumption as to the legitimacy of a child statutorily encoded in section 112 of IEA is laid down on the principle of public policy. This presumption is an attempt to protect the chastity of women and prevent the child from being branded as a bastard. The legislative spirit behind this section seeks to establish that any child which is born out of a valid marriage must be legitimate. The law does not presume dishonourable or immoral actions.

Section 112 of IEA deals with the legitimacy of a child born during a valid wedlock. It lays down the following:
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 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.

According to this section, the law presumes that if a child is born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution and the mother remains unmarried, then it would be conclusive proof of its legitimacy unless and until it can be proved that parties to the marriage did not have access to one another. According to the section, this presumption is an irrebuttable presumption of law which can only be rebutted if nonaccess between the parties is proved. This presumption is so strong that it applies even if the child is born within a few days of marriage.[1]

To rebut this presumption of law the only necessary element required to be proved prima facie is that both the husband and wife didn't have access to each other during the probable time at which the child could have begotten. Not having access refers to the non-existence of opportunity to have sexual intercourse like due to being far far away from the wife at the probable time of begetting of a child or due to any serious illness or impotency.

Any other condition to prove such non-access would suffice to rebut the presumption under this section. Once a suspicion is raised or a prima facie case of non-access is made before the court of law this presumption can be displaced by a strong preponderance of evidence. DNA testing would be the best evidence to prove such issue of illegitimacy. However, it can only be ordered by the court of law in cases where the prima facie case is made in the husband's favour. We will discuss the law relating to the relevancy of DNA in further paragraph.

Relevancy of DNA Test

DNA is deoxyribonucleic acid, which is a double-stranded long molecule and appears like a twisted rope ladder or double helix. It is made up of one-half of our biological mother's DNA and one-half of our biological father's DNA. Fifty per cent of our DNA is passed down to our biological children. It is this that ensures DNA is unique and allows for accurate testing of parentage and direct descendants through a DNA paternity test. Previously due to the lack of advanced scientific techniques and the absence of strong proof of the reliability of DNA tests, courts don't used to rely on it. However, recent scientific developments showing the accuracy of DNA tests and the emerging number of cases requiring its use led the courts to allow it.

Section 45 of the Indian Evidence Act, 1872 provides for the admissibility of such evidence. It lays down that opinions of a person skilled on a point of foreign law, science art or question as to the identity of handwriting or finger impressions are relevant facts. In Kunhiraman Vs. Manoj[2], The C.J.M. said that according to Section 45 of the Indian Evidence Act, in which expert opinion is admissible, the DNA evidence is also a scientific examination and the opinion of the expert in the matter of Cellular and Molecular Biology is admissible just like the opinion of a chemical analyst or fingerprint expert. This verdict was also upheld by Kerala High Court. Therefore, it can be concluded that DNA test is admissible evidence under the Indian Evidence Act and can be provided as expert evidence to prove his/her case.

The Law Commission in its 185th report has also recommended the inclusion on DNA testing in the Indian Evidence Act by amending its section 112. The 185th Report of the Law Commission of India states that law of evidence is likely to undergo radical changes with standardization of new technologies. The judge would find himself (or herself) in a difficult situation if he/she is unable to appreciate the probative value of new standards and concepts of evidence.

In modern world the technology of DNA fingerprinting has been accepted method of proving the paternity and other disputes of similar nature. The modern technologies of genetics and reproduction are solving many complicated questions of fact. With the invention of new technologies and due to new researches in the field of science, radical changes are taking place in the 21st century in understanding human behaviour. These changes are not due to social sciences but due to the advancement of biological science. DNA fingerprinting is such a revolutionary step in the related field. Law is primarily concerned with the human behaviour and its study.[3]

Right to privacy and DNA
The need and justification of DNA tests have been widely highlighted by the courts as well as the law commission. However, it has also been perceived as a threat to once fundamental right to privacy. Various objections have been raised in front of the court regarding its validity stating that it infringes right to privacy. In the famous case in relation to DNA investigation Sharda v. Dharmpal[4], following two issues were raised:
  • Whether a matrimonial court has the power to direct a party to undergo a medical examination; and
  • Whether passing of such an order would violate the Article 21 rights of the party against whom such an order is sought to be enforced.
The court held that:
  1. A matrimonial court has the power to order a person to undergo a 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 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 a medical examination, the court will be entitled to draw an adverse inference against him.

Admissibility of DNA Test

There are lots of cases, mainly of paternity disputes, which are solved by DNA analysis. The use of DNA test as a piece of evidence for determining the parentage of a child is allowed only when there is a prima facie case in the husband's favour i.e. there is some evidence showing that the husband cannot be the father of the child either due to his physical incapacity or serious illness or permanent impotency.

The first paternity dispute case related to DNA analysis, which was also performed at CCMB (A.P.), hit the whole Indian Judicial System and media was presented before the C.J.M. Telicherry (Thalassery), Kerala. In this case a village girl Vilasini filed a case against his lover Kunhiraman for the maintenance of her child/son Manoj. She alleged that her son was born to her on account of illicit relations between them. The husband disowned her and he denied taking the paternity of her son. The C.J.M. ordered both of them to undergo DNA test with their son at CCMB, Hyderabad (A.P.) India. Dr. Lalji Singh, Forensic Scientist and his colleagues performed the DNA test, and by the analysis result, it was proved that disputed was fathered by none other than Kunhiraman.[5]

In the case Gautam Kundu v. State of West Bengal[6], the supreme court held that DNA tests cannot be allowed to prove illegitimacy of a child unless a prima facie case is not made in the husband's favour.

In Kanti Devi w. Poshi Ram[7], the Court again held that the result of a genuine DNA test is said to be scientifically accurate, yet it is not enough to escape from the conclusiveness of Section 112 of the Act even though DNA Test reveals that the child was not born to the husband.

In Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and Anr.[8] , court held that it was permissible for a court to order a DNA test, but it had to consider diverse aspects including the presumption under Section 112 of the IEA, the pros and cons of such an order to balance the interests of the parties and the test of 'eminent need' to decide whether it was possible for the court to reach the truth without holding the test.

However, this trend changed after the decision of Supreme Court Nandllal Wasudeo Badwaick v.Lata Nandlal Badwaik[9], where the court held that Section 112 of the Evidence Act was enacted when modern scientific advancements such as DNA Tests were not in contemplation of the legislature. The result of the DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the condition enumerated therein but the same is rebuttable.

Section 112 of the Act does not create legal fiction but provides a presumption of fact. The Court further held that when there is a conflict between a conclusive proof envisaged under Section 112 and a proof based on scientific advancement accepted by the world to be correct, the latter must prevail over the former.

In Dipanwita Roy v. Rombroto Roy[10] the court held that if the party fails to comply with the order of DNA testing, the court is open to draw an adverse inference.

In the case of Priyanka Janardhan Patil v. Janardhan Raghunath Patil[11], there is a strong suspicion in the mind of the respondent-husband about the paternity of the child which has been from the wedlock of the petitioner and therefore the respondent had filed the aforestated application below Exhibit 19 for conducting DNA test of the child and the parties herein. Court held that by now, it is well-settled position of law that, the result of a genuine DNA test is said to be scientifically accurate.

That, due to advanced scientific technology, conducting of DNA test would certainly throw light on the paternity of the child, which the respondent is seriously disputing and/or having serious doubt about it. The respondent cannot be foisted with paternity of child, if it is prove by a scientific method that he is not the biological father of the said child, though, he was having access to the petitioner at the relevant time.

In conclusion, while the presumption as to the legitimacy of a child born during wedlock is conclusive and rebuttable, it itself provides for the rebuttable-ness of the presumption on proving the non-access between husband and wife at the probable time when the child could have been begotten. This presumption was laid down in 1872 when the women were considered as vulnerable in the society. It aimed to protect the chastity of women and prevented the child from branding as a bastard.

It would look hard from a man's point of view but it was the necessity of time that the law has examined. but the law also considered the mental and psychological element of a man to non-acceptance of a bastard child and to protect the interest of both the man and child in such a case provided him with an opportunity to prove his case by giving evidence as to his incapability of begetting the child either by physical incapacity or serious illness or permanent impotency.

At such time no other method rather than the traditional presentation of evidence of non-access either due to physical separation or serious illness, was present for the man. However, with the advancements in DNA technology, determining the paternity of the child has significantly impacted notions of paternity and familial relationships. DNA evidence has emerged as a powerful tool in determining biological parentage, challenging longstanding presumptions and sometimes even overturning legal determinations of paternity.

In essence, while the presumption of legitimacy remains a cornerstone of family law, the advent of DNA technology has introduced a new dimension to discussions of paternity. Courts have significantly accepted the notion of DNA testing as an expert opinion to provide justice and secure the interest of a man.

However, it is not quite easy for a man to make the court direct for DNA testing. For such a scenario there must be a prima facie case in the husband's favour. A mere balance of probabilities is not enough there must be a strong preponderance of evidence to rebut such a presumption. Courts in India have held that DNA tests can be a piece of conclusive evidence in a case for deciding the paternity of a child.

  1. Sethu v. Palani ILR(1925) 49 Mad
  2. II [(1991) DMC 499]
  3. Law Commission of India, 185th Report, 2004 Cr. L.J. 143, Journal Section.
  4. (2003) 4 SCC 493
  5. Kunhiraman Vs. Manoj II [(1991) DMC 499]
  6. AIR 1993 SC 2295
  7. AIR 2001SC 2226
  8. (2010) 8 SCC 633
  9. AIR 2014 SC 932
  10. AIR 2015 SC 418
  11. 2022 SCC OnLine SC 1047

Award Winning Article Is Written By: Mr.Md Arfeen Masud
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