DNA Tests and Section 112 of the Evidence Act: The Need for A Uniform Standard

Author: Ashutosh Kumar,Hidayatullah National Law University, Batch of 2019

Genetic information plays a vital role in various branches of law including the law of evidence. S. 112 of the Indian Evidence Act, 1872 says “The fact that a 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 the when he could have been begotten”

Various High Courts and the Supreme Court across the country have grappled with multiple questions surrounding DNA evidence. A question that has come up time and again is if DNA based evidence is conclusive evidence to rebut the presumption under section 112 of the Evidence Act.

Under what provisions can the court order DNA test in the cases of paternity.

While courts have disagreed on a plethora of issues, there has been a consensus that there should be strong prima facie evidence for the courts to order the DNA tests as it interferes with the privacy of the individual. Inherent powers provided by section 151 of the Code of Civil Procedure, 1908 (CPC). Section 151 empowers the court to make such orders which in the opinion of the court would help it in reaching the ends of justice. Such tests can also be ordered under section 75(e) of the CPC read with Order XXVI, Rule 10A of the Code of Civil Procedure, 1908 (CPC). These sections allow the court to hold ‘scientific, technical or expert investigation’ in the cases where they cannot in the opinion of the court to be conducted before the court. This position has been upheld by the Odisha high court in Thogorani Alias K. Damayanti vs The State Of Orissa and affirmed in Selvi v. The State of Karnataka. In such cases, the court issues a commission to a person it thinks fit to inquire into the matter and report thereon to the court.

Judicial Interpretation of S. 112 of the Indian Evidence Act

The first case to use DNA based evidence to determine paternity was Kunhiraman vs Manoj. The Chief Judicial Magistrate of Tellicherry had ordered the DNA test to determine the paternity of a child which was alleged to have been born between Kuniharaman, the appellant and Vilasini. In a criminal revision petition, the Kerala High Court confirmed the decision of the trial court and held that the DNA test is in itself conclusive to determine the paternity of an individual.

However, courts have been reluctant to use this technology in the past. In Gautam Kundu vs state of West Bengal, the Supreme Court held that nobody can be forced to give a blood test. It was further held that courts should not order such tests as a normal course of action, and no adverse opinion can be drawn from these tests. It was also held that such tests are to be only used as circumstantial evidence to dispel the presumption the party disputing the paternity will have to have strong proof of non-access. In Narain Dutt Tiwari vs Rohit Shekhar, it was held that the judgement of the Supreme Court in Gautam Kundu judgement fails in the certain cases, such as where the son wants to ascertain who his biological father is as in this case it does not ‘bastardize’ the child but gives it rights. The right to know and be cared for is also guaranteed by Article 7 of the Convention on the Rights of the Child, to which India is a signatory.

The Supreme Court in Marjit Kaur v. Harbhajan Singh and Anr. had observed that when section 112 Indian Evidence Act was enforced, technologies like DNA testing were not even conceptualized. The court also agreed that the results of a genuine DNA test are scientifically accurate but held that this accuracy is also not enough to escape the strong presumption under section 112 of the Indian Evidence Act. However, there has been a divergence from this view recently. In Nandlal Basudeo Badwaik vs Lata Nandlal Badwaik, the Supreme Court held that knowing the truth and neglecting DNA evidence goes against the basic notions of justice. It was further held that the court should not put the burden of fatherhood on a person who it knows is not the real father of such child.

DNA Evidence and The Right to Privacy

While courts have disagreed on a plethora of issues, there has been a consensus that there should be strong prima facie evidence for the courts to order the DNA tests as it interferes with the privacy of the individual.

While courts have disagreed on a plethora of issues, there has been a consensus that there should be strong prima facie evidence for the courts to order the DNA tests as it interferes with the privacy of the individual and must bow down to compelling public interest”. An argument may be made that a matter involving paternity should be included in the ‘compelling public interest’ exception. A person claiming that he is not the father of a child is not in the best interests and the welfare of the child as envisioned under Article 7 of the Convention of the Rights of Child and various judgements of the Supreme Court.

In Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, the Supreme Court opined that DNA tests interfere with the right to privacy and thus, cannot be ordered as a normal course of action. The court reiterated that courts require strong prima facie evidence to order such tests and held that “when there is an apparent conflict between the right to privacy of a person not to submit himself forcibly to a medical examination and duty of the court to reach the truth, the Court must exercise its discretion only after balancing the interests of the parties and on due consideration whether, for a just decision in the matter, a DNA test is eminently needed.”

While Part C of the Schedule of ‘DNA Technology (Use and Regulation) Bill, 2019’ includes paternity under its purview, it is silent on the procedure that is to be followed in such cases. For example, the bill makes it mandatory to obtain consent from people in criminal cases but it remains silent about the requirement of consent in civil matters.

Conclusion

From the cases discussed above, it is clear that DNA tests can only be ordered cases where there is strong prima facie evidence for the issuance of an order of DNA tests. Although there is no fixed standard that has to be for the DNA test to be ordered. ‘Strong prima facie evidence’ in itself is a varying standard and can cause problems. What constitutes strong prima facie evidence will vary from person to person. There is a dire need for guidelines to specify and identify such cases in which DNA tests can be ordered in order to establish a uniform standard throughout the country. It is thus clear that there is a need to strike a balance in ordering DNA tests and the best interests of a child while developing a uniform standard for ordering these theses.