DNA Tests in Paternity Disputes

Introduction

As long ago as in mid 16^th century in Buckly v. Rice Thomas, Justice Sauders[1] expressed the concern showed by law in accepting guidance from scientific expertise. He stated“….if matters arise in our law which concerns others sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is an honourable commendable thing in our law. We approve of them and encourage them as things worthy of commendation”.

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 be cause 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.

DNA Paternity Testing

DNA is the abbreviation of “deoxyribonucleic acid”. The structure of DNA varies from individual to individual. It is the basic genetic material in all living beings. It carries the genetic code and, there fore, it is useful for proving the structure, human character, and behavior and body characteristics.[2]

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.[3]

What does DNA Paternity Testing involve?

Usually, DNA from the alleged parents and the child are required for the DNA Paternity Testing. Having access to the maternal DNA makes the testing easier, as, with this part conclusively settled, you only need to check the other half of the child's DNA with that of the father. If the DNA sequence shows a strong similarity, then the Paternity is proved. If there is no similarity, then the person is not the father.

DNA Paternity Testing done without analyzing the mother's DNA is called 'Motherless' DNA Testing. This involves a bit more of lab work, but the results are just as conclusive. In case the father is missing, a DNA viability test can help determine the paternity. The DNA Viability Test involves testing material like preserved samples of hair or other body tissues.[4]

What are the methods used in DNA Paternity Testing?

There are various procedures for DNA Paternity Testing. Previously, ABO Blood Group Typing and HLA (Human Leukocyte Antigens) Testing were mainly used to determine Paternity.

Nowadays, the two methods more commonly used in DNA Paternity Testing are the Polymer Chain Reaction Method (PCR) and the Restriction Fragment Length Polymorphism (RFLP).

For DNA Paternity Testing, saliva samples from the buccal or cheek region are taken from the people to be tested and these are processed in the laboratory to extract the DNA of each. The extracted DNA are analyzed and compared. You can get the results of the DNA Paternity Testing overnight if the case is urgent or over a period of 3 to 4 days. The results are delivered with a guarantee of confidentiality and accuracy.[5]

How is DNA Paternity Testing done?

In the PCR method, DNA is extracted, fragmented, amplified and then separated by the process of gel electrophoresis. The sequence of the DNA fragments is then studied and compared. In the RFLP method, the extracted DNA is fragmented by enzymes and the DNA fragments are sorted by size and then undergo identification.[6]

Prenatal Paternity testing[7]

DNA Paternity Testing can be done even to determine the paternity of an unborn child. This is called a Prenatal Paternity Test. In such a case, samples pf the unborn baby's DNA are obtained through either the Chorionic Villi Sampling (CVS) procedure, in which placenta cells are collected, or the Amniocentesis Procedure, in which fetal cells from the amniotic fluid are collected. Both of these testing methods are not without a certain amount of risk as they are invasive procedures and should not be undertaken without the advice of an Obstetrician or Gynecologist.

It might be safer and a lot less expensive to have the DNA Paternity Testing done right after the child is born. This can be done by taking a blood sample from the umbilical cord.

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.

Paternity test in U.K.

In England, where keeping pace with modern thinking on the continuing and shared responsibility of parenthood, The Family Reforms Act,1969 was replaced by The Family Reforms Act, 1987 which enabled the Judiciary to determine the parentage rather than paternity. The U.K has also recognized the importance of DNA technology and has enacted Data Protection Act, 1998. In U.K DNA developed as an investigative tool. A boy from Ghana, born in U.K wanted to join his family in U.K, the authorities denied his entry because they were not satisfied that he was the son of alleged mother. Through DNA test it was found that he was the son of alleged mother and thus he was allowed to stay with his mother. [8]

Paternity test in U.S.A.

As early in 1921 Paternity Exclusion Test was published in U.S.A. by Otlerbein(an year before Dyke did it inEngland). Paternity exclusion test was carried out in 1933 also by Wiener. Later on Justice Steinbrink of New York Supreme Court rules that for deciding paternity blood test may be carried out. It opened a flood gates and several states passed legislation enabling and empowering Courts to order blood test for deciding paternity disputes. In U.K.in cases involving paternity or maternity disputes the technology of DNA fingerprinting was applied frequently in late eighties. in a case, a girl claimed that she was pregnant by a person who was killed in an automobile accident. A question arose as to whether the child was entitled to succeed the estate of the deceased or not. After the child was born DNA prints were prepared from the blood sample of the infant. DNA prints were also prepared from the stored blood of the father. The two samples were matched and it was found that the deceased person was not the father of the child and hence the child could not inherent the estate left by his alleged father. In February, 1988 in Maryland a automobile mechanic discovered a dead body of an infant on the rear seat of the car which he was repairing. The tissue samples of the women, owner of the car and the dead infant were taken and were subjected to DNA tests. The tests show that the owner of the car was the mother of the infant, but she was not charged with the murder as the child was still born.[9]

Paternity test in India

In India DNA testing got legal validity in 1989.[10]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.

The raison d’etre under the Evidence Act is against the legitimization of a child and is based on public policy and thata child should not suffer on account of lapses of parents. It is also the normative legislative intention that when certain fact is considered as conclusive proof of another fact, the judiciary generally disables the party in disrupting in such proof. The only exception provided in Indian Evidence Act is in the form of an outlet to a party, who wants to escape from the rigor of that conclusiveness. In such cases, it’s the DNA test which helps the Courts to decide on the contentious issue based on aspect of conclusiveness. As in The Hon’ble Supreme Court in Gautam Kundu Vs State of West Bengal[11] 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.

The Rule of Law based on the dictates of the Justice has always made the Courts inclined towards upholding the legitimacy of the child, unless the facts are so conclusive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such the legitimacy of the child is rank justice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender material, which will have the effect of branding a child as a bastard and his mother as unchaste women. In view of the provision of Sec.112 of the Evidence Act, there is no scope of permitting the husband to avail of blood test for dislodging the presumption of legitimacy and paternity arising out of the Section. Blood group test to determine the paternity of a child born during wedlock is not permissible.

Presumption under Section 112 of Evidence Act remains there even after DNA test- Kamti Devi v. Poshi Ram[12]

If husband and wife were living together during the time of conception, but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irributtable. Law leans in favor of the innocent child being bastardized, if his mother and her spouse were living together during the time of conception.

In Banarsi Dass[13], reiterating its view in Kamti Devi [14], the apex court held that DNA test is not to be directed as matter of routine and only in deserving cases such as direction can be given. In Perumal Nadar v. Ponnu Swami[15]-“Blood test cannot show positive any man is the father but can show positively that a given man could or could not be the father. It is obviously the latter aspect that puts the blood test as the most valuable in determining the paternity. In Raghunath v. Sharadbhai[16]Bombay High Court observed that blood grouping tests have their limitations. As they cannot possibly establish paternity, but can only indicate possibilities. In Sadashiv Mallikarjun Khedarkar v. Nandini Sadasiv Khedarker[17]R. J. Vidyanath J. observed:“There may be instances where the husband and wife are living together and the wife may have gone astray and then a delivered a child through illicit connection. But in the view of the legal presumption Under Sec.112 of the Indian Evidence Act,1872 the husband cannot be allowed to prove that the child is not brown to him science husband and wife are living together, even if it is proved that wife had some illicit relationship with another person. What should be done in such case is a question death has cropped up in my mind… but if we go by rigor or presumption under Sec.112 of the Evidence act no husband can be permitted to prove that the child born to the wife is not his, if the husband and the wife are together even if wife is proved to be living in adultery. In some cases it has been held that courts are seized to inherent powers, which can be exercised ex debito justitiae. Bombay High court in this case, it was further held that the court has power to direct blood examination but it should not be done as a matter of course or to have a roving inquiry, the Bombay High Court even felt that there should be a suitable amendment by the legislature and after nothing that no body can be compelled to give blood samples, it was held that the court can give direction but cannot compel giving of blood sample.In Sanjeera v. Sahm[18](a direction to undergo a DNA  test was given)However it was already admitted by the mother that the child was born out of wedlock and there had been an illicit relationship. Moreover the respondent had expressed willingness to undergo the test at the petitioner’s cost and there was no question of compulsion. InS.Thangavelu v. S.Kannammal [19] Court can order DNA test in cases of maintenance, matrimonial matters and succession. Court has ample powers to direct parties to undergo medical tests or give sample of blood for DNA test.

Conclusion

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,[20]which must be just, fair and reasonable one.[21] The courts also feel that such an order may violate the right of an accused person protected under Art. 20 (3)[22] of the Constitution .I most humbly feel that this is a one sided approach of the court. Will it not be a violation of Human Rights in case of a child whose father denies his acceptance as a biological father? In such a delicate situation which father i.e. whether societal or biological shall have the right as well as the duty towards the child. Will the child not have the right to see that his or her Human Rights should also be protected and overlooked by the courts?[23] 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.[24]

* Pooja N.Vadodaria,LL.M.-II(Criminal Law),Faculty of Law, M.S.University ,Vadodara.

[1] (1554) 1 Plowden 118.Quated by Justice M.Jagannadha Rao,C.J. Kerala,1993(1)KLT p.19

[2] (2003) 8 SCC (J)

[3] http://www.buzzle.com

[4] Ibid

[5] Ibid

 [6] Supra note 3

[7]Ibid

 [8] www.symlaw.ac.in

[9] 1994 Cri LJ Jour 1

[10] Anil Kumar v. Turaka Kondala Rao ,1998 Cri.LJ 4279(AP)

[11] AIR 1993 SC 2259

[12] AIR 2001 SC 2226

[13] Banarsi Dass v. Teeku Datta (2005)4 SCC 449

[14] Ibid

[15]  AIR 1971 SC 2352

[16] AIR 1986 Bombay 386

[17] 1995 Cri L J 4090 (Bom) at 4093

[18] 2000 Cri L J 1208(Ker). No question of compiusion ariases in the case of preserved foetus and direction to conduct paternity test can be made- Alika Khosal Vs. Thomas Mathew, Manu/DE/1842/2001

[19]  AIR 2005 MAD 106(107)

[20] Art.21 says – No person shall be deprived of his life and personal liberty except according to the procedure established by law.

[21] Maneka Gandhi v. Union of India AIR 1978 SC 597

[22] Art.20 (3) Says – No, person accused of any offence shall be compelled to be a witness against himself.

[23] 2007 Cri L J jour

[24]  Supra note 8