FAMILY LAW PROJECT

ON
Disputed Paternity and the pertinence of DNA Testing

Submitted to:
Prof. Sanitta Maria

B.COM; LL.B (HONS.), 3st Semester,

BC0140037.

Submitted on:
04, OCTOBER, 2015.
 2

INTRODUCTION

As per the Indian Evidence Act 1872 Legitimacy is the status of a child born
during the continuance of a valid marriage between the mother and any man, or
within 280 days after its dissolution if the mother remains unmarried, unless it is
shown that the parties to the marriage had no access to each other at any time when
the child could have been conceived, his birth is treated as a conclusive proof of
being legitimate1. The major scientific development in the area of DNA testing
technology and its facts revelations has solved many interacting crime-related
mysteries especially in the areas of rape, mass killing either because of natural or
human agencies or in solving civil disputes specially related with the paternity of a
child and in finding the identity of an individual. It has also been used in solving the
cases of exchange of babies in hospitals or nursing homes. Before the advent of
DNA technology a technique which was developed by English geneticist Alec
Jeffreys in 1987 ,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 fingerprinting is one of the greatest identification systems we have to
recognize an individual or living organism. Every living creature is genetically
different in its own way, except for identical twins, triplets etc. DNA is comparable to
a serial number for living things. Each individual contains a unique sequence that is
specific to that one organism. Unlike traditional fingerprints which can be surgically
altered or self mutilated, the DNA sequence cannot easily be changed once the
material is left at a crime scene, thus increasing its effective use in forensics, and the
probability of finding an exact match. This method of identification is useful in many
applications such as forensics and paternity testing. Herein I have dealt with the
latter in this research paper.
Paternity testing is conducted to determine if a man is an individuals
biological father. While several different ways to establish paternity were used in the
past, DNA testing is now the most accurate and popular method and the only

1
Section 112 of the Indian Evidence Act states that birth of a child within 280 days of
dissolution of a marriage is a conclusive proof of legitimacy.
 3

method admissible in most courts. People seek paternity tests for reasons varying
from curiosity to settling custody and financial disputes. Determining paternity also is
necessary to give children access to family medical histories and information about
potential genetic diseases, and to any veteran and social security benefits or medical
insurance available through the father. To further understand DNA fingerprinting we
must first discuss the basics of DNA.

Introduction to DNA Basics

DNA, also known as deoxyribonucleic acid, contains a specific sequence of

bases called nucleotides which contain the information of all the characteristics of
living organisms. This information was inherited through the DNA of their parents.
DNA is found in almost every cell of every living organism. The DNA represents the
instruction book for making living organisms. The four nucleotides that constitute
the sequences of DNA are adenine (A) which bonds exclusively with thymine (T),
and guanine (G) which bonds exclusively with cytosine (C). The molecular structure
of DNA can be imagined as a zipper with each tooth representing one of the four
letters (A, C, G, or T) and with opposite teeth forming either of the two pairs, AT or
GC. About 99 % of the combinations are the same the 1 % of the different
combination makes the difference in from any one individual to another in his dna
fingerprint. 2

A chromosome is the visible state of genetic material during the division

phase of a cell. Humans have 23 pairs of chromosomes, which makes 46 individual
chromosomes. Half of the chromosomes of an individual come from the mother and
the other half from the father, i.e. DNA is made up of one half of our biological
mothers DNA and one half of our biological fathers DNA. 50% of our DNA is passed
down to our biological children. It is this that ensures DNA is unique, and allows for
accurate testing of parentage and direct descendents through a DNA paternity test. 3

Chromosomes are found in the nucleus, and contain a linear strand of

DNA. The DNA molecule is twisted onto itself and the super-coiled molecule is

2
NCERT, Biology for class 12,2007,pg.143-146
3
ibid
 4

enclosed in proteins which help maintain its shape. The chromosomes carry the
genes that make each individual. DNA is essentially made up of amino acids and it is
matched with the so-called bases which I have mentioned earlier, provide the key to
determining the genetic blueprint. Each and every cell in the human body has a
sample of the DNA. Each human nucleus contains almost 5 picograms of DNA and
an average human being contains about 250 grams of DNA. For DNA fingerprinting
the desired quantity is in micrograms. DNA can be extracted from a wide range of
sources, including samples of hair, cigarette butts, blood, razor clippings or saliva.
Thus it is relatively easy to obtain samples, which can then be tested in a laboratory
to determine any genetic relationships that may be present.

In a DNA parentage test, the result which is called the 'probability of

parentage, is 0% when the alleged parent is not biologically related to the child and
the probability of parentage is typically 99.99% when the alleged parent is
biologically related to the child. However, while almost all individuals have a single
and distinct set of genes, rare individuals, known as "chimeras"4, have at least two
different sets of genes, which can result in a false negative result if their reproductive
tissue has a different genetic makeup from the tissue sampled for the test.

History of Paternity Test

The first form of any kind of parental testing was blood typing, or matching
blood types between the child and alleged parent, which became available in the
1920s. Under this form of testing, the blood types of the child and parents are
compared, and it can be determined whether there is any possibility of a parental
link. For example, two O blood type parents can only produce a child with an O blood
type, and two parents with a B blood type can produce a child with either a B or O
blood type. This most often led to inconclusive results, as only 30% of the entire
male population can be excluded from being the possible father under this testing. In

4
ibid
 5

the 1930s, a new form of blood and bodily fluid testing, surgical testing, became
available, with a 40% exclusion rate.5

In the 1960s, highly accurate genetic paternity testing became a possibility

when HLA testing was developed, which compares the genetic fingerprints on white
blood cells between the child and alleged parent. Paternity testing technology
advanced with the isolation of the first restriction enzyme in 1970, and accuracy was
further improved with the development of PCR in 1983. As a result, parental testing
could be done with 80% accuracy, and in some cases, 90%. Subsequent advances
in DNA testing technology during the 1980s and 1990s allowed parentage to be
established with 99.99% accuracy or higher.6

PROCEDURE FOLLOWED IN PATERITY TEST

The technique was developed by English geneticist Alec Jeffreys in 1987. It is

now widely available in India. DNA, the genetic material, is found in all cells of the
body. A child inherits a unique combination of DNA from its mother and father, and
no two persons have the same DNA, except for identical twins. Thus, DNA can be
used to conclusively determine paternity7. DNA testing can be done in two ways:
RFLP (Restriction Fragment Length Polymorphism) and PCR (Polymerase Chain
Reaction).

There have been two main types of paternity- DNA testing. They are often
called, RFLP and PCR based testing, although these terms are not very descriptive.
Generally, RFLP testing requires larger amounts of DNA and the DNA must be
undegraded. Warm moist conditions may accelerate DNA degradation rendering it
unsuitable for RFLP in a relatively short period of time.

5
http://en.wikipedia.org/wiki/DNA acessed on : 13.nov.2014
6
ibid
7
T. Burke, G. Dolf, A.J. Jeffreys, and R. Wolf, eds., DNA Fingerprinting: Approaches and Applications,
(1991), pg 12
 6

PCR-based testing often requires less DNA than RFLP testing and the DNA may be
partially degraded, more so than is the case with RFLP. However, PCR still has
sample size and degradation limitations that sometimes may be under-appreciated.
PCR-based tests are also extremely sensitive to contaminating DNA within the test
laboratory. During PCR, contaminants may be amplified up to a billion times their
original concentration. Contamination can influence PCR results, particularly in the
absence of proper handling techniques and proper controls for contamination.

PCR is less direct and somewhat more prone to error than RFLP. However, PCR
has tended to replace RFLP in forensic testing primarily because PCR based tests
are faster and more sensitive.

RFLP :
RFLP8 (Restriction Fragment Length Polymorphism) has been almost entirely
replaced by PCR-based testing. The following description of RFLP is included here
primarily for historic reasons (more current formats see below).

RFLP DNA testing has four basic steps9:

1. The DNA from the son and the alleged fathers are taken as samples and is cut
with something called a restriction enzyme. The restriction enzyme recognizes a
particular short sequence such as AATT that occurs many times in a given cell's
DNA. One enzyme commonly used is called Hae III (pronounced: Hay Three) but
the choice of enzyme varies. For RFLP to work, the analyst needs thousands of
cells. If thousands of cells are present from a single individual, they will all be cut in
same place along their DNA by the enzyme because each cells DNA is identical to
every other cell of that person.

2. The cut DNA pieces are now sorted according to size by a device called a gel.
The DNA is placed at one end of a slab of gelatin and it is drawn through the gel by
an electric current. As the DNA is an acid it is attracted to the positive terminal of the

8
Dikshit PC. Textbook of forensic medicine and toxicology ,2007.p. 349 -352
9
ibid
 7

electrolyte. The gel acts like a sieve allowing small DNA fragments to move more
rapidly than larger ones.

3. After the gel has separated the DNA pieces according to size, a blot or replica of
the gel is made to trap the DNA in the positions that they end up in, with small DNA
fragments near one end of the blot and large ones near the other end. The blot is
now treated with a piece of DNA called a probe. The probe is simply a piece of DNA
that binds to the DNA on the blot in the position were a similar sequence (the target
sequence) is located.

4. The size or sizes of the target DNA fragments recognized by the probe are
measured. Using the same probe and enzyme, the test lab will perform these same
steps with the alleged father of the son in question. These sizes and how they
distribute among the samples are observed and recorded. From the observations a
rough idea of how common a given DNA size measured by a given probe is found.
The commonness of a given size of DNA fragment is called a possibility frequency.

The restriction enzyme cuts the DNA into thousands of fragments of nearly all
possible sizes. The sample is then electrophoretically separated. The DNA at this
point is invisible in the gel unless the DNA is stained with a dye. A replica of the
gel's DNA is made on something called a blot (also called a Southern blot) or
membrane. The blot is then probed (mixed with) a special preparation of DNA that
recognizes a specific DNA sequence or locus. Often, the probe is a radioactively
labeled DNA sequence (represented by * labeled object in the figure above). Excess
probe is washed off the blot, then the blot is laid onto X-ray film. Development
reveals bands indicating the sizes of the alleles for the locus within each sample.
The film is now called an "autorad." The band sizes are measured by comparing
them with a "ladder" of known DNA sizes that is run next to the sample. A match
may be declared if two samples have RFLP band sizes that are all within 5% of one
another in size.
 8

For RFLP analysis to be reliable, all complex steps of the analysis must be carefully
controlled. If there is a 50 % similarity between the autorad between the son and the
alleged father then its a ,positive test stating that the alleged father with 50% of
possibility frequency is the biological father of the child.

PCR :

PCR10 is an abbreviation for "polymerase chain reaction. This term applies

to a wide variety of different DNA tests that differ in reliability and effectiveness.
Reliabilities of each kind of PCR test need independent verification. PCR itself
doesn't accomplish DNA typing; it only increases the amount of DNA available for
typing. PCR uses constant regions of DNA sequence to prime the copying of
variable regions of DNA sequence.PCR typically uses two short pieces of known
DNA called primers .These serve as starting points for the copying of a region of
DNA.

Developed by Kary Mullis in 1983, a process was reported by which specific

portions of the sample DNA can be amplified almost indefinitely. This has
revolutionized the whole field of DNA study. The process, the polymerase chain
reaction (PCR), mimics the biological process of DNA replication, but confines it to

10
Ibid,p. 352-354
 9

specific DNA sequences of interest. With the invention of the PCR technique, DNA
profiling took huge strides forward in both discriminating power and the ability to
recover information from very small (or degraded) starting samples11.

PCR greatly amplifies the amounts of a specific region of DNA. In the PCR
process, the DNA sample is denatured into the separate individual polynucleotide
strands through heating. Two oligonucleotide DNA primers are used to hybridize to
two corresponding nearby sites on opposite DNA strands in such a fashion that the
normal enzymatic extension of the active terminal of each primer (that is, the 3 end)
leads toward the other primer. PCR uses replication enzymes that are tolerant of
high temperatures, such as the thermostable Taq polymerase. In this fashion, two
new copies of the sequence of interest are generated. Repeated denaturation,
hybridization, and extension in this fashion produce an exponentially growing
number of copies of the DNA of interest. Instruments that perform thermal cycling
are now readily available from commercial sources. This process can produce a
million-fold or greater amplification of the desired region in 2 hours or less.

The system of DNA profiling used today is based on PCR and uses short
tandem repeats (STR). This method uses highly polymorphic regions that have short
repeated sequences of DNA (the most common is 4 bases repeated, but there are
other lengths in use, including 3 and 5 bases). Because unrelated people almost
certainly have different numbers of repeat units, STRs can be used to discriminate
between unrelated individuals. These STR loci (locations on a chromosome) are
targeted with sequence-specific primers and amplified using PCR. The DNA
fragments that result are then separated and detected using electrophoresis. There
are two common methods of separation and detection, capillary electrophoresis (CE)
and gel electrophoresis.

Each STR is polymorphic, but the number of alleles is very small. Typically
each STR allele will be shared by around 5 - 20% of individuals. The power of STR
analysis comes from looking at multiple STR loci simultaneously. The pattern of
alleles can identify an individual quite accurately. Thus STR analysis provides an

11
ibid
 10

excellent identification tool. The more STR regions that are tested in an individual the
more discriminating the test becomes.

Using PCR technology, DNA analysis is widely applied to determine genetic

family relationships such as paternity, maternity, and other kinships. During
conception, the fathers sperm cell and the mothers egg cell, each containing half
the amount of DNA found in other body cells, meet and fuse to form a fertilized egg,
called a zygote. The zygote contains a complete set of DNA molecules, a unique
combination of DNA from both parents. This zygote divides and multiplies into an
embryo and later, a full human being.

At each stage of development, all the cells forming the body contain the same
DNAhalf from the father and half from the mother. This fact allows the relationship
testing to use all types of all samples including loose cells from the cheeks collected
using buccal swabs, blood or other types of samples.

While a lot of DNA contains information for a certain function, there is some
called junk DNA, which is currently used for human identification. At some special
locations (called loci) in the junk DNA, predictable inheritance patterns were found to
be useful in determining biological relationships. These locations contain specific
DNA markers that DNA scientists use to identify individuals. In a routine DNA
paternity test, the markers used are Short Tandem Repeats (STRs), short pieces of
DNA that occur in highly differential repeat patterns among individuals.

Each persons DNA contains two copies of these markersone copy

inherited from the father and one from the mother. Within a population, the markers
at each persons DNA location could differ in length and sometimes sequence,
depending on the markers inherited from the parents. The combination of marker
sizes found in each person makes up his/her unique genetic profile. When
determining the relationship between two individuals, their genetic profiles are
compared to see if they share the same inheritance patterns at a statistically
conclusive rate.
 11

For example, the following sample report from this commercial DNA paternity testing
laboratory Universal Genetics signifies how relatedness between parents and child is
identified on those special markers:

DNA Marker Mother Child Alleged father

D21S11 28, 30 28, 31 29, 31
D7S820 9, 10 10, 11 11, 12
TH01 14, 15 14, 16 15, 16
D13S317 7, 8 7, 9 8, 9
D19S433 14, 16 14, 15 15, 17

The partial results indicate that the child and the alleged fathers DNA match
among these five markers. The complete test results show this correlation on 16
markers between the child and the tested man to enable a conclusion to be drawn as
to whether or not the man is the biological father.

Each marker is assigned with a Paternity Index (PI), which is a statistical

measure of how powerfully a match at a particular marker indicates paternity. The PI
of each marker is multiplied with each other to generate the Combined Paternity
Index (CPI), which indicates the overall probability of an individual being the
biological father of the tested child relative to a randomly selected man from the
entire population of the same race. The CPI is then converted into a Probability of
Paternity showing the degree of relatedness between the alleged father and child.

PATERNITY TEST IN INDIA

The Indian Judiciary seem to be slowly but steadily coming in terms and
acceptance with the conclusiveness of the advanced modern technology like DNA
Test in the matters of disputed Paternity cases. Recently, the Delhi High Court rightly
availed itself of the benefit of this modern technology, in the administration of civil
justice, with respect to a maintenance case filed by wife, where paternity of a child
was in question. A land mark judgment was given by the honorable high court
 12

whereby Vipin Sanghvi, J 12 observed that the, The parentage of the child can only
be determined by a DNA test. The liability to pay maintenance under section 125
Criminal Procedure Code can be avoided by the petitioner with respect to this child
only if it is established that he is not the biological son of the petitioner Scientific
evidence is accepted all over the world for clear proof and ascertainment of disputed
paternity. The ascertainment of legitimacy/illegitimacy of a disputed child cannot be
restricted to be determined by Section 112 of the Indian Evidence Act, 1872. In the
wake of new scientific inventions the new available techniques should be adopted in
the administration of justice.

In civil litigations the main area where DNA profiling and matching is used, is
related to Paternity or Parentage matters. In Paternity disputes there are two primary
prominent issues involved. Firstly, the effects of Section 112 of the Indian Evidence
Act in the context of the developments in the DNA testing process. And secondly, if
the courts in India could direct a person to give sample of his or her DNA and the
consequences of the refusal to provide the same. We shall deal with the above
issues in the context of the judicial approach to paternity disputes in India.

In our country, initially the judges took very conservative views regarding the
application of DNA evidence in resolving the paternity dispute cases. The journey
from non acceptance of DNA test by calling it a mere balance of probabilities[6] 13to

the current situation of acceptance based on the merits of the case in paternity
matters has been a fairly long one spanning over almost one and half decade. The
Honourable Supreme Court in Goutam Kundu v. State of West Bengal14 and
Kamti Devi v Poshi Ram15 had rejected the blood grouping and DNA test on the
ground that the child may be stigmatized as a bastard in the society as a result of
DNA test. This explanation of the honorable Supreme Court, with due respect, may
be humbly submitted, has caused utmost hardship to innocent husband who has

12
Crl M.C.N0.1815/2007
13 In Gautam Kundu v State of West Bengal
14 AIR 1993 SC 2295
15 AIR 2003 SC 2226
 13

committed no wrong and is forced to bear the fatherhood of a illegitimate child.

Further, the explanation of possible stigmatization of the child also appears vacant in
the presence of Section 112 of the Indian Evidence Act, by which the illegitimacy of a
child can still be determined by the application of the no access logic between the
husband and wife. The explanation also does not hold good in the presence of
provision of maintenance vide Section 125, CrPC, to an illegitimate minor child or an
illegitimate major child with physical and mental abnormality.

If the intention of the Supreme Court in rejecting DNA test in the above
decision is to really do away with the taboo and stigma attached with illegitimacy of a
child then the word illegitimate should be removed or struck out from all legislations
in India. Again, Medical Jurisprudence evidences that there is a lot of chance that a
maximum period of pregnancy can be over 280 days. Section 112 does not apply to
all those critical situations where even after 280 days of dissolution of marriage a
mother remaining unmarried can claim legitimacy of the child born to her. In such a
situations DNA test is the only method to establish the legitimacy of the child and
solve the dispute with respect the paternity of the child.16

The no access criterion becomes meaningless and absurd in situations

where the wife although has access to the husband also leads a promiscuous
lifestyle and gets impregnated by an outsider. However, due to the presumption of
law under Section 112 of the Indian Evidence Act, the innocent husband is cast with
the responsibility of fatherhood, and the child is recognized as his legal child. In this
case the innocent husband is heavily penalized simply because the no access
criterion cannot be proved.

However, as stated earlier, the Courts are slowly considering the importance
of DNA test and in many instances have deviated from the decision in Kundus case.
For example in Kanchan Bedi v Gurpreet Singh Bed 17 a DNA test of the child was
directed where the defendant was denying any marriage had taken place between
him and the plaintiff and therefore he was not the father of the child. A DNA test was
also conducted in the sensational Premanada Swamis case ,a godman who was

16
Modis Medical Jurisprudence, 22nd Edn. at pg. 540 to 542
17 2003 (103) Delhi LT 165
 14

charged with the rape of several teenage girls in his ashram. A DNA test established
that 45 year old Swami Premananda as the biological father of the foetus as a result
of rape of 19-year-old Arul Jyothi. The recent Delhi High Court judgment has also
given a positive direction to the applicability and acceptance of DNA tests in disputes
involving paternity.

In order to understand the situation with respect to the second primary issue
we have to see another important Supreme Court decision. In Dwarika Prasad
Satpatty v. Bidyut Parva Dixit18 it was held that the refusal to paternity (DNA) test
would bar a party from challenging the paternity of the child. This decision was
followed in K. Salvaraj v P. Jayakumari19 and it was also stated that an adverse
inference can be drawn if a party refuses to undergo a DNA test. This seems to be a
preferable interpretation and strikes a balance where although the court does not
have the power to direct the giving of sample, it may draw an adverse inference if it
is not given.

18 2000Cri LJ 1: AIR 1999 SC 3348

19 2000 Cri LJ 1:AIR 1999 SC 3348
 15

CONCLUSION

The justice administration system needs to assimilate the scientific

advancements of genetic profiling and develop procedural techniques for harnessing
the emerging juridical challenges. The significant paradigms of DNA fingerprints
cannot be left alone to the courts to adjudicate with temporary tailor made solutions.
Therefore in matters of disputed paternity, the legitimacy or illegitimacy of the child
cannot be determined solely by Section 112 of the Indian Evidence Act, 1872. DNA
technology can conclusively establish the truth in such disputes and therefore should
be resorted to without any hesitation. It is to be borne in mind that when Section 112
was being drafted even the discovery of DNA was not contemplated and therefore
this section should be amended.
An ideal solution could be to provide another outlet apart from the proof of
non-access (as discussed earlier) to be provided in the form of evidence of DNA test
to rebut the conclusive proof provision in Section 112. Therefore, DNA technology
can conclusively establish the truth in such disputes and therefore should be
resorted to without any hesitation.
 16

BIBLIOGRAPHY

BOOKS

NCERT, Textbook for Biology ,class XII,2007.6th Edn

Dikshit PC. Textbook of forensic medicine and toxicology ,2007

Modis Medical Jurisprudence,2010, 22nd Edn.

WEBSITES

Wikipedia.

Manupatra

Indiankanoon