Discuss the relevancy and admissibility of scientific techniques, like Polygraph Test, Narco Analysis Test and DNA Test as applied to the cases involving the law of paternity as against criminal law…

Question: Discuss the relevancy and admissibility of scientific techniques, like Polygraph Test, Narco Analysis Test and DNA Test as applied to the cases involving the law of paternity as against criminal law with special reference to the ratio of the decisions.

In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633, Selvi and others v. the State of Karnataka, (2010) 7 SCC 263 and the latest decision in the case of Dipanwita Roy v. Ronobroto Roy, Civil Appeal No. 9744 of 2014, decided on 15.10.2014. [U.P.H.J.S. 2014]

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Answer

The general presumption is that the result of a genuine DNA test is said to be scientifically accurate. But if a husband and wife were living together during the time of conception, and the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. Where Section 112 applies and non-access is not proved, even a negative DNA test report cannot help to rebut the presumption drawn under Section 112 of the Evidence Act. Keeping this in mind let’s understand the admissibility of scientific techniques in determining the paternity of the child, whose legitimacy is in question.

As held in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women & Anr [AIR 2010 SC 2851], the conclusiveness of the presumption under Section 112 of the Indian Evidence Act, has the salutary purpose of preventing ‘bastardisation’ and, therefore, cannot be disturbed lightly and DNA tests cannot be ordered at the drop of a hat.

Also, in the same year, in the case of Selvi v. State of Karnataka (2010), the court noted the difference between DNA profiling and DNA sample and noted that DNA Profile is different from a DNA sample which can be obtained from bodily substances. Hence, the taking and retention of DNA Samples which are in the nature of physical evidence do not face constitutional hurdles in the Indian context and are relevant and admissible in determining the paternity of the child, if necessary.

1. Relevancy or admissibility of D.N.A. or R.N.A. Test

In Kamti Devi v. Poshi Ram, [AIR 2001 SC 2226] the Supreme Court held that Section 112 of Evidence Act was enacted at the time when modern scientific advancement with Deoxyribonucleic Acid (DNA) as well as Ribo Nucleic Acid (RNA) was not even in contemplation of the Legislature.

The result of a genuine DNA test is said to be scientifically accurate but even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if the husband and wife were living together during the time of conception but DNA Test reveals that the child was not born to the husband the conclusiveness in law would remain un-rebuttable.

This may look hard from point of view of a husband who would be compelled to bear the fatherhood of the child of which he may be innocent. But even in such cases law leans in favour of an innocent child from being bastardised if his mother and spouse living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in light of what is meant by access or non-access as delineated above.

The leading case regarding the admissibility of the DNA test in relation to proving the illegitimacy of the child under section 112 is of Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576. The court observed herein under:

“Section 112 of the Indian Evidence Act, 1872 was enacted at a time when the modern scientific advancements and DNA tests were not even in the contemplation of the legislature. The result of the DNA test is said to be scientifically accurate. Although section 112 raises a presumption of conclusive proof on the satisfaction of the conditions enumerated therein the same is rebuttable.

The presumption may afford a legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to the proof.

The interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions unless science has no answer to the facts in issue. When there is a conflict between a conclusive proof envisaged under the law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

In the case of Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365, the court observed: It is in the process of substantiating his allegation of the infidelity of his wife that the husband made an application before the Family Court for conducting a DNA test which would establish whether or not he had fathered the male child born to his wife. He feels that it is the only way to substantiate his allegations.

The Supreme Court observed that DNA testing is the most legitimate and scientifically perfect means, which the husband could use to establish his assertion of infidelity. This simultaneously is taken as the most authentic, rightful and means also with the wife, for her to rebut the assertions made by her husband and to establish that she had not been unfaithful, adulterous or disloyal. It observed that the High Court had rightly directed for the same.

It is to note that even the result of a genuine DNA test may not be enough to escape from the conclusiveness of section 112 of the Evidence Act like a case where a husband and wife were living together during the time of conception. Thus, to conclude, the court has to consider diverse aspects including presumption under section 112 of the Evidence Act; the pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without the use of such test.

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