Abstract
During last 30 years, DNA has emerged as a potent forensic tool in advancing justice in India as well as throughout the globe. DNA profiling assists in human identification with great precision and is used for various purposes including adjudication of civil and criminal matters. In criminal domain, DNA helps in stitching crime with criminal and in identification of victim. In civil courts, DNA has increasingly been used in resolving paternity disputes by identifying putative father despite not being recognized under Indian legal lexicon. Presumption of legitimacy under Section 112 of Indian Evidence Act, 1872, recognizes socio-legal father provided a child is born within lawful wedlock. Earlier ‘presumptive’ father, a legal fiction, and ‘putative’ father, a genetic reality, were assumed to be the one and the same person, but DNA has exposed the ‘genetic truth’ of childbirth by lifting the veil from ‘twin fatherhood’ and has opened a Pandora’s box in Indian legal panorama by heralding coexistence of both socio-legal and putative father especially under laws of inheritance. This article attempts to explore the legal trends for paternity determination by using DNA profiling through examining various judicial pronouncements of Indian courts.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
In the United Kingdom, two minor girls were raped and murdered in two different incidents, first in Narborough, Leicestershire, in November 1983, and the second in Enderby, also in Leicestershire, in July 1986. Interestingly, the real accused Colin Pitchfork, who later confessed the felony and was convicted for life imprisonment, bribed a man named Ian Kelly for giving blood sample in his name to conceal his identity during DNA dragnet.
- 2.
Firstly, is there a theory, which is generally accepted in the scientific community, which supports that DNA test can produce reliable results? Secondly, are there currently existing techniques or experiments which are generally accepted in scientific community, capable of producing reliable results in DNA identification?, and, thirdly, did the testing laboratory perform the accepted scientific techniques in analysing the forensic sample in the particular case?
- 3.
People v. Castro 545 N.Y.S.2d 985 (Sup. Ct.1989). It was the first case where DNA profile was seriously challenged for DNA admissibility. Castro was accused of double murder of his neighbour and her baby daughter. A blood stain was lifted from Castro’s watch for a DNA match with the victims. The court held that: (i) DNA identification theory and practice and techniques applied are generally accepted among the scientific community. (ii) The accreditation of the DNA laboratory was also needed to its reliability to observe the established scientific standards. The Castro ruling supports the proposition that DNA identification evidence of exclusion is more presumptively admissible than DNA identification evidence of inclusion. In Castro’s case, the court ruled that DNA tests could be used to show that blood on Castro’s watch was not his, but tests could not be used to show that the blood was that of his victims. The court observation in this case was based on Frye test established in Frye v. the United States 293 F. 1013 (D.C. Cir.), 1923. However, Castro’s case was never tried. He pleaded guilty to the murders in late 1989.
- 4.
The Fifth Amendment of US Constitution reads that ‘No person… shall be compelled in any criminal case, to be a witness against himself’.
- 5.
Five guidelines are (1) that courts in India cannot order blood test as a matter of course; (2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained; (3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act; (4) the court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman; and (5) no one can be compelled to give sample of blood for analysis.
- 6.
The skeletal remains (a skull, pelvis, teeth and limb bones) were recovered from the forest area of Gagode Khurd village in Pen Tehsil of Raigad district in the state of Maharashtra (India).
Sheena murder case: DNA from Raigad bones matches Indrani Mukerjea’s blood sample” DNA Daily News Analysis, 08 September, 2015 (http://www.dnaindia.com/india/report-sheena-murder-case-dna-from-raigad-bones-matches-indrani-mukerjea-s-blood-samples-2122955).
- 7.
The Courts hold similar ratio in Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1997) 7 SCC 675, Amarjit Kaur v. Harbhajan Singh (2003) 10 SCC 228, and Kamalanatha v. State of Tamil Nadu Appeal (crim.) 611–612 of 2003 in the Supreme Court of India, decided on April 05, 2005. The legal question arises, what shall be the impact of adverse inference or DNA test result when Section 112 does not recognize any other person as legitimate father than one who is the legitimate husband of the mother of child. Merely determining the putative father without there being accepted in society and recognized under the law may not yield desired result for the petitioner.
- 8.
The phrase ‘the best interest of child’ denotes the well-being of a child and Article 3(1) of the UN Convention on the Right of the Child, 1989 (UNCRC): For the purposes of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier.
- 9.
In property disputes, DNA technology is frequently used by higher judiciary to ascertain claims of the petitioner for establishing genetic linkages with the respondent. Darshan Singh v. Amarjit Singh @ Surjit Singh @ Kaka Singh Criminal Petition No. 2614 of 2014 Swarna Kanta v. Amarjit Singh @ Surjit Singh @ Kaka Singh v. Darshan Singh, Criminal Petition No. 3104 of 2014, both petitions dealt together in the Punjab and Haryana High Court, decided on July 21, 2014; Smt. H. Susheela v. G. Hanumanthappa Regular First Appeal No. 1219 of 2013, In the High Court of Karnataka, decided on September 25, 2014; and Namdeo Babasaheb Korde v. Babasaheb @ Babrao Ramkrishna, W.P. No. 7402 of 2012, In the Bombay High Court, decided on December 21, 2013.
- 10.
Surrogacy has two variants, viz. gestational and traditional. The gestational surrogate mother has no genetic contribution to the foetus and only carries artificially fertilized embryo to the term. In traditional surrogacy the ovum belongs to the surrogate.
- 11.
Section 375 of Indian Penal Code: A man is said to commit rape if he penetrates his penis, or any part of his body or any object into the vagina, the urethra or anus of a woman or make her to do so with him or other person, against her will or without her consent.
References
Sanders J (2000) Forensic case book of crime. True Crime Library/Forum Press, London, p 229 ISBN 1-874358-36-2
Tande CM (1989) DNA typing: a new investigatory tool. Duke Law J 1989(2):474–494
Jeffrey S, Alec J, Wilson V, Thein SL (1985) Hypervariable ‘Minisatellite’ regions in human nature. Nature 314:67; “Individual-specific ‘Fingerprints’ of human DNA,” Nature 316(1985):76
Andrews v. State of Florida (1988) 533 So.2d 841
People v. Wesley 140 Misc. 2nd 306, 533 N. S. Y. 2nd 643 (Co. Ct. 1988)
133 S.Ct. 1958 (2013).District Attorney’s office for Third Judicial Dist. v. Osborne, 557 U.S.52, 55 (2009)
Edward C, Lundregan T, Miller N, McEwen T (1996) Convicted by juries, exonerated by science: case studies in the use of DNA evidence to establish innocence after trial. U. S. Department of Justice
Jayaraman KS (1989) Cut price fingerprints. Nature 340:175
II (1991) DMC 499)
In various cases like Gautam Kundu v. State of West Bengal 1993 (2) Scale 994. O. 6/95 and N. D. Tiwari v. Rohit Shekhar FAO(OS) No. 547/2011, the High Court of Delhi, decided April 27, 2012, the paternity was decided by DNA Profiling and justice was delivered to victims including maintenance to abandoned children and concubines. Lakshmi Kant Pandey v. Union of India [1984] AIR SC 469; Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik [2014] Criminal Appeal No. 24 of 2014 (Special Leave Petition Crim. No. 8852 of 2008, January 06, 2014); Rajiv Gandhi assassination (D.No.1151/1998, SC); Priyadarshini Mattoo (Santosh Kumar Singh v. CBI, 139 (2007) DLT 407, I (2007) DMC 654), and Poetess Madhumita Shukla (Amar Mani Tripathi v. State of Uttar Pradesh through CBI, Crim. Appeal No. 1248/2005, SC, Sept. 26, 2005). Verma SK, Goswamy GK (2014) DNA Evidence: The current perspective and future challenges in India, FSI. pp 183–9
Davis AR (1994) Are you my mother? The scientific and legal validity of conventional blood testing and DNA fingerprinting to establish proof of parentage in immigration cases. 1BYU L Rev 129–149. Available at: http://digitalcommons.law.byu.edu/lawreview/vol1994/iss1/1 (Last visited on January 12, 2018)
Virkler K, Lendev IK (2009) Analysis of body fluids for forensic purposes: from laboratory testing to non-destructive rapid confirmatory identification at a crime scene. Forensic Sci Int 188:1–17
Tande CM (1989) DNA typing: a new investigatory tool. Duke Law J 1989(2):474–494
Jeffreys AJ, Wilson V, Thein SL (1985) Hypervariable ‘minisatellite’ regions in human DNA. Nature 314:67–73
Romelka JM, Yan F (2013) Recent advances in forensic DNA analysis. J Forensic Res S12:001
Williamson AL (2012) Touch DNA: forensic collection and application to investigations. J Assoc Crime Scene Reconstr 18:1–5
Jeffreys AJ, Wilson V, Thein SL (1985) Individual-specific ‘fingerprints’ of human DNA. Nature 316:76–79
Roewer L (2013) DNA fingerprinting in forensics: past, present, future. Investig Genet 4:22
Bhatt JN (2003) A profile of forensic science in juristic journey. SCC (Jour) 8:25
Iyengar A, Hadi S (2014) Use of non – human DNA analysis in forensic science: a mini review. Med Sci Law 54:41–50
Neufeld PJ, Oclman N (1990) When science takes the witness stand. Sci Am 18, 262
Jeffreys AJ, Brookfiled FY, Semeonoff R (1985) Positive identification of an immigration test case using human DNA fingerprint. Nature 317:818
Kelly KF, Rankin JJ, Wink RC (1987) Methods and applications of DNA fingerprinting: a guide for the non-scientist. Criminal Law Review 105–108 note, “Stemming the DNA tide; a case for quality control guidelines” Hamline Law Review, 16 (1992):211:213–214
Bureau of Justice Statistics (1991) Forensic DNA analysis: issues. U.S. Department of Justice, Bureau of Justice Statistics, Washington, DC, p 4 note 8
Dodd V, Laville S (2012) Stephen Lawrence verdict: Dobson and Norris guilty of racist murder. The Guardian, January 03, 2012. Available at: http://www.theguardian.com/uk/2012/jan/03/stephen-lawrence-verdict-guilty-murder. (Last visited on January 12, 2018)
533 So.2d 841 (1988)
James R (2009) A brief history of DNA Testing. Time 19 June, 2009
The District Court Of Columbia introduced “general-acceptance” test in Fyre v. United States [293 F. 1093 (D.C. Cir. 1923]
Daubert v. Merrell Dow Pharmaceutical (1993) 125 L.Ed. 125 2d. 469
3 F. 3d 1191 (1993)
R v. Lewis (1987) 88 F.L.R. 104
R v. Trans (1990) 50 A Crim R. 233
R v. Turner (1975) 1 Q.B. 834
Lander ES (1989) DNA fingerprinting on trial. Nature 339:501; Scheck BC (1994) DNA and Daubert. Cardozo L Rev. 15:1959
611 N.Y.S.2d 97 (1994), 633 N.E.2d 451
Burk DL (1988) DNA Fingerprinting: possibilities and pitfalls of a new technique. Jurimet J 455; Lander ES (1989) DNA Fingerprinting on trial. Nature 339; Kaye, DH (1991) The admissibility of DNA testing. Cardozo L Rev 353; Lampert R (1991) Some caveats concerning DNA as criminal identification evidence with thanks to Reverend Bayes. Cardozo L Rev 303
545 NY S 2d 985 (Sup Ct. 1989)
821 F. 2d 1186 (6th Cir. 1987) para 79
1999 WL 233592 at 13 (Tenn. Crim. App. Apr. 20. 1999)
776 A.2d 1091 (Conn. 2001)
181 DLR (4th) 320 (1999)
In CBI v. Santosh Singh AIR 1994 SC 786, the defense alleged of tampering with the DNA sample and the burden to rebut the allegation lies on the prosecution
2015 SCC OnLine SC 1336
2003 Cr.LJ. 4508 (A.P.)
AIR 1994 SC 786. In Appeal, the view of court was upheld by the Supreme Court [State of Karnataka v. M. V. Mahesh (2003) 3 SCC 353]
(1977) 23 EHRR 313
Liff v. Liff (Orse Rigby) 1948 WN 128
W. v. W. (1963) 2 All ER 841 (CA) P 67; S. v. McC [1972] A.C. 24
State of Uttar Pradesh v. Deomen Upadhyaya AIR 1960 SC 1125
AIR 1961 SC 1808: 1962 SCR (3) 10
2010 7 SCC 263
Naik AKV v. The State of Andhra Pradesh. 1977 Cri LJ 1797 (Para 20)
1976 Cri LJ 1680
Thogorani @ K. Damayanti v. State of Orissa 2004 Cr. LJ 4003 (Ori)
Kodi Satish Naidu v. The State of Andhra Pradesh 133 S.Ct. 1958 (2013)
Olavarupu Venkataswarlu v. Polavarappu Subbaya AIR 1951 Madras 910
Vasu v. Santha 1975 Ker LT 533
AIR 1987 SC 1049
AIR 1963 Guj 250
AIR 1986 MP 57
Satpathy DP v, Dixit BP (2000) Cri LJ 1: AIR 1999 SC 3348; Smt. Kaomti Devi v. Poshiram, 2001 (5) SCC 311); Dwarika Prasad Satpathy v. Bidyut Prava Dixit AIR 2001 SC 2266: 2001 Cri LJ 2615; Amarjit Kaur v. Harbhajan Singh 2003 (10) SCC 228; Bharti Raj v. Sumesh Sachdeo AIR 1986 All 259; Sadashiv Mallikarjun Kheradarkar v. Nandini Sadashiv Mallikarjun Khedarkar 1995 Cri LJ 4090 (Bom); K. Selvaraj @ Surendan v. P. Jayakumari 2000 Cri LJ 4748 (Kerala); Syed Mohammad Ghouse v. Noorunnissa Begum (2001) Cri LJ 2028 (Andhra Pradesh); Haribhai Chanabhai Vora v. Keshubhai Haribhai Vora AIR 2005 Guj 157
1993 AIR SC 2295
2005 (4) SCC 449
Amitbhai Anilchandra Shah v. Central Bureau of Investigation (2013) 6 SCC 348. Para 52 (j)
2007 CriLJ 964
2007 CriLJ SC 4008
(2005) 8 SCC 21
State through Reference v. Ram Singh, Crim App. No. 1398/2013, The High Court of Delhi, Decided on March 13, 2014
Kamalanantha v. State of Tamil Nadu, Appeal (crl.) 611–612 of 2013 SC decided on April 05, 2005 http://indiankanoon.org/doc/192852/ (last visited on January 12, 2018)
Swamy Shraddananda v. State of Karnataka (2008) 13 SCC 767
State of Tamil Nadu through CBI/SIT v. Nalini, (1999) 5 SCC 253
Beant Singh, The then Chief Minister of Punjab, was assassinated in a car bomb on 31 August 1995. DNA test helped in establishing identity of his defaced dead body
Missing Bodies. http://911research.wtc7.net/wtc/evidence/bodies.html (last visited on January 12, 2018)
Ge J, Sun H et al. (2014) Future directions of forensic DNA databases. Croat Med J 55:163–166
(1987) 1 SCC 624
Vasu v. Santha (1975) Kerala Law Times p 533
Morris v. Davies (1837) 5 Cl. and Fin. 163
Jayprakash v. Nisha 2013 (3) Ker LJ 85
II (1991) DMC 499: Kerala High Court; 1991
AIR 2012 (Delhi) 151
Goswamy GK (2015) The genetic truth of surrogate parentage. Med Leg J 83:188–193
Satpathy DP v. Dixit BP AIR 1999 SC 3348
(2001) 5 SCC 311
(2001) 5 SCC 311 para 10
2000 Cri LJ 1208 (Ker)
2003 (103) Delhi LT 165: AIR 2003 Del 446
2002 (62) DRJ 851
(2005) 4 SCC 449
AIR 2003 SC 3450
(2010) 8 SCC 633
Bhawani Prasad Jena v. Orissa State Commission for Women (2005) 4 SCC 449 para 13
Kaur A v. Singh H (2003) 10 SCC 228; Kanchan Bedi v. Gurpreet Singh Bedi 2003 Rajdhani Law Reporter 229; Ramkanya Bai v. Bharatram (2009); and Ramkanya Bai v. Bharatram (2010) 1 SCC 85
AIR 2012 (Delhi) 151
(1997) 1 F.L.R. 360
(1972) AC 24
(2002) EWCA Civ 383
Rohit Shekhar v. Narayan Dutta Tiwari, IA No. 4720/2008 in CS (OS) 700/2008, In Delhi High Court, decided 23 December, 2010 (para 30) Available at: http://indiankanoon.org/doc/101695806/ (last visited on January 12, 2018)
(2014) 2 SCC 576
(2014) 2 SCC 576 Para 27
(2015) 1 SCC 365; 2014 (12) SCALE 126
2014 SCC Online P & H 4982
(2014) 2 SCC 576 Para 27
Goswami GK (2016) Assisted reproduction and conflicts in rights. Satyam Law International, New Delhi
Section 354C of Indian Penal Code, 1860
Section 354D of Indian Penal Code, 1860
Connors Edward, Lundregan Thomas, Miller Neal and Tom McEwen (1996) “The DNA “Wars” Are over”, excerpted from “Convicted by juries, exonerated by science” A case studies in the use of DNA Evidence to establish innocence after trial (National Institute of Justice)
http://www.pbs.org/wgbh/pages/frontline/shows/case/failure/ (Last visited on January 12, 2018)
Amitbhai Anilchandra Shah v. Central Bureau of Investigation (2013) 6 SCC 348; Rajeev Singh v. State of Bihar 2015 SCC OnLine 1336: (2016) CCR 70 (SC)
Setia H (2016) Evidentiary value of forensic reports in Indian courts. Res J Forensic Sci 4:1–7
Magalhaes T et al (2015) Biological evidence management for DNA analysis in cases of sexual assault. Sci World J Article Id 365674
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer Nature Singapore Pte Ltd.
About this chapter
Cite this chapter
Goswami, G.K., Goswami, S. (2018). Three Decades of DNA Evidence: Judicial Perspective and Future Challenges in India. In: Dash, H., Shrivastava, P., Mohapatra, B., Das, S. (eds) DNA Fingerprinting: Advancements and Future Endeavors. Springer, Singapore. https://doi.org/10.1007/978-981-13-1583-1_11
Download citation
DOI: https://doi.org/10.1007/978-981-13-1583-1_11
Published:
Publisher Name: Springer, Singapore
Print ISBN: 978-981-13-1582-4
Online ISBN: 978-981-13-1583-1
eBook Packages: Biomedical and Life SciencesBiomedical and Life Sciences (R0)