DNA is an abbreviation of Deoxyribo Nucleic Acid. It is found in the human body as basic genetic material, which could be extracted from the hairs, saliva, semen, blood, bone, and other organs of the human body.
Today there is no specific law that governs the admissibility of forensic technique. However, the courts derive its validity from the various provisions of the Code of Criminal Procedure, 1973 and Evidence Act, 1872. DNA consist of 50% of the biological mother’s DNA and 50% of the biological father’s DNA. So DNA is unique and allows for accurate determination of parentage. DNA of every individual is different expect of identical twins.
In 1953 Scientist Francis H.C. Crick and James Watson describes DNA as building block or genetic blueprint of life. DNA analysis was first performed by English Scientist Alec J. Jeffreys in 1985.
VALUE OF DNA EVIDENCE
DNA is a strong piece of evidence. It is a powerful investigative tool. So, DNA collected from the crime scene can make anyone suspect or can eliminate one from suspicion. It is used under section 157 of the Indian Evidence act, 1872 to corroborate the earlier statement of witnesses. And it is also used under section 159 to refresh the memory of the witness. It is also used to cross-examine the expert witness under the Indian Evidence Act, 1872.
FIRST DNA ADMISSIBLE IN INDIA
In the case of “Kunhiraman Vs Manoj, 1989, the first maternity dispute arose. The CJM ordered DNA testing. CJM held that as the expert opinion is admissible under section 45 of the Indian Evidence Act, 1872 the DNA evidence is also a scientific examination. So, the opinion of expert in cellular and molecular biology is admissible just like opinion of chemical analyst or fingerprint expert. Later on, the Kerala High Court upheld this judgment of Subordinate Court.
ADMISSIBILITY OF DNA IN INDIAN LEGAL SYSTEM
DNA evidence is admissible in India as it is part of expert opinion under section 45 of the Indian Evidence Act, 1872. While considering the fastest development of Science the court had held that, nothing is wrong to direct anyone to undergo DNA analysis for arriving at a proper conclusion by the court. And this will not be the infringement of personal liberty of any individual under Article 21 of the Indian Constitution.
But there is an exception to the rule. According to section 112 of the Indian Evidence Act,1872, if the parents are residing together at the time of conception of child, DNA testing cannot be used to avoid paternity. And the idea behind this section is to avoid bastardization. Recently in a Judgment, the apex Court upheld the validity of section 112 despite the DNA testing proves otherwise.
DNA IN CIVIL CASES
In civil cases, DNA testing is used by the courts to determine paternity. Section 112 of Evidence Act talks about the legitimacy of a child born during the lawful wedlock or within 280 days of the dissolution of marriage if the mother remains unmarried. But the only exception to rebut this presumption is that the husband proves non-access between them. So, there was an issue before the Courts that while dealing with the paternity matter the DNA test could be ordered or not?
In 1993 the Apex Court issued the following guidelines:
- The courts in India cannot order the blood test as a matter of course.
- No order shall be made if an application is made to roving the inquiry.
- There must be a strong prima facie case that the husband must establish the non-access between the husband and wife to rebut the presumption under section 112 of the Evidence Act.
- The courts must have carefully examined the results of allowing the DNA testing, whether it will brand a child as a bastard and a mother as unchaste.
- An individual shall not be compelled to give the blood tests.
Hence the court will not allow DNA testing
- If the wife proves the lawful wedlock as mentioned under section 112 of Evidence Act.
- And, the wife proves that there was access between husband and wife.
The court will allow DNA testing:
If the husband proves that there was access between the husband and wife, at the time of conception of child.
Supreme Court’s decision in “Nandlal Wasudev Badwik VS Lata Nandlal Badwik” (2014)
This judgment has changed the presumption under section 112 of the Evidence Act. The court held that section 112 does not create any legal fiction it is only a presumption. When the husband proves non-access by DNA testing, we cannot force him to bear the fatherhood of the child. We are conscious that a child must not be bastardized but, in view of the DNA testing it has been observed, we cannot forestall the consequences. This denying the truth. “ truth must Triumph” is the hallmark of justice.
DNA IN CRIMINAL CASES
In criminal cases, DNA tests used to identify the perpetrators of the crime mainly of sexual offenses and homicide. And also used to identify the remains of the victim.
DNA and Self-incrimination
The Constitution Bench held that taking and retention of DNA which are physical evidence faces no constitutional hurdles under Article 20(3).
DNA has turned out to be the boon to the judicial system, particularly in criminal matters. But, in civil cases, the prevailing societal aspect considered it against human dignity.
Keeping in view the above circumstances, section 151 of the Civil Procedure Code, 1908, provides the inherent power to the Courts, to act for the sake of justice, truth, and dignity of judicial administration.