Unraveling the Legal Quandary: DNA Testing and Section 112 of the Indian Evidence Act


Welcome to the official blog of the Law Offices of Kr. Vivek Tanwar Advocate and Associates, where we are dedicated to providing litigation support services for matters related to DNA Testing. In today’s blog post, we aim to shed light on the prevailing issues surrounding DNA Testing, the legal framework in place for their protection, and the steps we can take as a society to combat these acts. Join us as we explore this critical subject and empower you with the knowledge to protect your rights and safety.

The admissibility of DNA testing in the courts has long been a vexing legal question, particularly concerning issues of paternity and legitimacy. It delves into the complexities surrounding the interplay between DNA testing and Section 112 of the Indian Evidence Act, exploring the historical context, loopholes in the section, and the evolving legal landscape.

I. The Genesis of Ambiguity

A. Section 112: The Doctrine of Presumption

Section 112 of the Indian Evidence Act establishes a presumption of paternity for a child born during a valid marriage. However, advancements in scientific technologies, particularly DNA testing, have cast a shadow over the absolute nature of this presumption.

B. Disruption and Challenges

While DNA testing offers a precise mechanism to confirm paternity, it brings forth a myriad of challenges. Courts grapple with the question of whether DNA testing should be allowed in cases involving legitimacy, given its potential clash with rights such as privacy.

II. Section 112 Unveiled: Ambiguities and Criticisms

A. Non-Access Conundrum

The exception of “non-access” provides a limited escape from the presumption of legitimacy. It necessitates proving, beyond reasonable doubt, that there was no access between the parties during the time of conception. This stringent requirement, rooted in moral presumptions, may lead to unjust accountability for the party disputing paternity, especially when considering the importance of legitimacy in cases of custody and maintenance.

B. Moral Implications

Justice A.M. Khanwilkar’s assertion that “Social morality cannot violate the rights of even one single individual” highlights the inherent conflict between morality and law. While the law may reflect moral principles, it should not solely base its foundation on them. Section 112’s reliance on moral presumptions raises questions about its relevance in the modern era and its potential to compromise fairness in the justice system.

III. DNA Testing: Admissibility Challenges

A. Legal Framework

While DNA testing has found acceptance in serious criminal cases, its admissibility in civil matters, especially paternity disputes, remains contentious. The absence of a uniform code leaves room for uncertainty.

B. The DNA Regulation Bill 2019

The proposed DNA Regulation Bill seeks to establish a standardized framework for the use of DNA as scientific evidence. However, its enactment is pending, leaving the legal landscape without clear guidelines.

IV. The Legal Dilemma: Rights vs. Technology

A. Right to Privacy Debate (Article 21)

The Supreme Court’s stance in Govind Singh v. State of Madhya Pradesh recognizes the limitation of the Right to Privacy based on compelling public interest. While medical examinations are subject to this restriction, the constitutionality of laws affecting the Right to Life and Personal Liberty is upheld.

The use of DNA technology sparks debates on the violation of the right to privacy (Article 21). Courts, as seen in the case of Bhabani Prasad Jena v. Convenor Secretary, advocate for a balanced approach, emphasizing the need for strong prima facie evidence.

B. Right Against Self-Incrimination (Article 20(3)

The protection of Article 20(3) is not violated by DNA tests, as they involve a mechanical process rather than conveying personal knowledge. The distinction allows for the admissibility of DNA evidence in legal proceedings.

The right against self-incrimination (Article 20(3)) is considered vis-a-vis DNA sampling. Courts, in cases like Malappa @ Malingaraya v. State of Karnataka, assert that the right applies to testimonial evidence, not scientific evidence.

V. Judicial Evolution and Recognition

A. Early Resistance

Initially, courts resisted DNA testing as a counter to Section 112’s presumption, permitting it only with strong prima facie evidence of ‘non-access.’

B. Judicial Shift

Gautam Kundu v. State of West Bengal

In this landmark case, the court emphasized that blood tests should not be a routine course of action and individuals cannot be compelled to provide blood samples, highlighting the potential consequences of such testing.

Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women

Recognizing the importance of DNA profiling, the court held that when paternity is a contentious issue, DNA testing is a valuable tool. It underscored the need to consider reasonable factors while allowing the admissibility of DNA evidence.

Nandlal Basudeo Badwaik v. Lata Nandlal Badwaik

The Supreme Court, in this notable case, emphasized the injustice of ignoring DNA evidence when truth is at stake, relieving fathers from unjust burdens arising from strong presumptions.

The Need for Amendment

Section 112 of the Indian Evidence Act, enacted in 1872, predates advancements in forensic techniques and the discovery of DNA. The section’s outdated nature becomes apparent in today’s context, where science and morality have evolved. The call for revision is evident to accommodate DNA testing when a prima facie case disputes paternity, aligning the law with contemporary standards of justice and equity.

Conclusion: Navigating Ambiguity for Justice

In the nuanced landscape of DNA testing and Section 112, a delicate balance between legal presumptions and scientific advancements is sought. While courts have increasingly acknowledged the value of DNA testing, the need for a uniform standard and procedural clarity remains paramount. Achieving harmony between individual rights, legal doctrines, and technological advancements is crucial for a just and equitable legal system. The journey continues, navigating through controversies to establish a comprehensive framework for the admissibility of DNA testing in matters of paternity and legitimacy.

We are a law firm in the name and style of Law Offices of Kr. Vivek Tanwar Advocate and Associates at Gurugram and Rewari. We are providing litigation support services for matters related to the Indian Evidence Act 1872.

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