A PROJECT REPORT ON

LEGAL VALIDITY OF DNA TEST IN

EVIDENCE ACT WITH LIGHT OF CASES

SESSION 2015-2016

Submitted to-

Submitted by-

Prof. Dr. G.P. Tripathi

Aniket Upadhyay

Director Sir

B.B.A.LL.B.

MATS Law School

Semester VI

ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and
assistance from many people and I am extremely fortunate to have got this all
along the completion of my project work. Whatever I had done is only due to such
guidance and assistance and I would not forget to thank them.
I respect and thank Prof. Dr. G.P. Tripathi, for giving me an opportunity to do the
project work in LEGAL VALIDITY OF DNA TEST IN EVIDENCE ACT WITH
LIGHT OF CASESand providing me all support and guidance which made me to
complete the project on time. I am extremely grateful to him for providing such a
nice support and guidance.

DECLARATION

I hereby declare that the project work entitled LEGAL VALIDITY OF DNA
TEST IN EVIDENCE ACT WITH LIGHT OF CASES submitted to the MATS
LAW SCHOOL, is a record of a work done by me under the guidance of Prof. Dr.
G.P. Tripathi, Faculty of Law, MATS UNIVERSITY, and this project work has not
performed the basis for the award of any decree or diploma and similar project if
any.

Aniket Upadhyay

CONTENT

PAGES

1. INTRODUCTION.1
2. LEGAL DEFINITION OF DNA...2
3. WHAT IS DNA PATERNITY TESTING?..........................................................3
4. LEGALITY OF DNA PATERNITY TESTING...3
5. PATERNITY TEST IN INDIA.3
6. HOW DNA FINGERPRINTING IS DONE?.......................................................4
7. DNA TEST AND THE INDIAN LEGAL SYSTEM...6
8. SUGGESTIONS....9
9. CONCLUSION.......10
10. BIBLOGRAPHY...11

1. INTRODUCTIONThe 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
ones DNA neither changes during ones 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.

2. LEGAL DEFINITION OF DNADNA 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 Investigation1. 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.
2. 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.
3. 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.

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 TESTINGDifferent 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 INDIAThe 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. 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 childs 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.
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As in The Honble Supreme Court in Gautam Kundu v. State of West Bengal1 laid
some guidelines regarding permissibility of blood tests to prove paternity1. 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 FINGERPRINTING 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 called Polymerase Chain Reaction (PCR) and the testing PCR is known as PCRSTR (Short Tandem Repeat). It can produce quick, valuable results with degraded specimens.

1 (1993) 3 SCC 418.

2 www.ijhssi.org/papers/v2(7)/Version-3/C0273015021.pdf.
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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 Honble 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 Honble Supreme Court held that: If for arriving at the satisfaction of
the court and to protect the right of a party to the lis t 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.

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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 SYSTEMThe 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 childs 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

4 thelawgix.com/dna-tests-a-legal-perspective/
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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 doesnt enable
a complainant to collect blood, semen etc for bringing the criminal charges against the accused.
The 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 childs 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
5 www.lawyersclubindia.com Articles Criminal Law.
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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 Pradhes6, 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 Pradesh7, Supreme Court held that Right to
Privacy is not a guaranteed right under our Constitution. It is clear from various decisions which
have 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
6 1975 AIR 1378, 1975 SCR (3) 946.
7 1963 AIR 1295, 1964 SCR (1) 332.
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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 Courts 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. SUGGESTIONSSome broad suggestions emerging out of the study can be summarized as below1) 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.
8 2012 (1) JCC 169.
9 www.legallyindia.com/.../admissibility-of-dna-technology-in-the-indian-l.
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9. CONCLUSIONThe 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
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.

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10. BIBLOGRAPHY1. DNA Tests in Paternity Disputes; www.lawyersclubindia.com Articles Criminal Law.
2. DNA Tests: A Legal Perspective; thelawgix.com/dna-tests-a-legal-perspective.
3.

Admissibility

of

DNA

Technology

in

the

Indian

Legal

System;

www.legallyindia.com/.../admissibility-of-dna-technology-in-the-indian-l.
4.

DNA

Technology

and

Section

112

of

Indian

Evidence

Act,

1872;

www.legalserviceindia.com/articles/tdna.htm.
5. The Role of DNA in Criminal Investigation Admissibility in Indian Legal System and Future
Perspectives; www.ijhssi.org/papers/v2(7)/Version-3/C0273015021.pdf.

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