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

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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 CASES”and 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.

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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

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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

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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.

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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-

1. 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.

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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 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 child’s 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 Hon’ble Supreme Court in Gautam Kundu v. State of West Bengal 1  laid

some guidelines regarding permissibility of blood tests to prove paternity-

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 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 PCR-

STR (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 Hon’ble Supreme Court of India in the

case of Sharda v. Dharmpal 3  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.

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 3  (2003) 4 SCC 493.

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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

4 thelawgix.com/dna-tests-a-legal-perspective/

5 www.lawyersclubindia.com › Articles › Criminal Law.

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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 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

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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 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.

6 1975 AIR 1378, 1975 SCR (3) 946.7 1963 AIR 1295, 1964 SCR (1) 332.

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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-

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

8 2012 (1) JCC 169.9 www.legallyindia.com/.../admissibility-of-dna-technology-in-the-indian-l.

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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 185th 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.

10. BIBLOGRAPHY-

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1. 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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