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Presumption of Legitimacy:
In favour of DNA tests under S. 112
TABLE OF CONTENTS
01. Introduction03 02. I. Section 112 and the Evidentiary Aspects of DNA tests.....04 A) A Conceptual Background of S. 112.04 B) Reliability of DNA tests....05 C) Usage of DNA tests in Paternity Identification.06 03. II. Policy v. Truth: Striking a Balance....10 04. Conclusion......12 05. Annotated Bibliography......13 06. Annotated Table of Cases...16
INTRODUCTION
According to James Fitzjames Stephen, presumption means a rule of law that courts and judges shall draw a particular inference from a particular fact or from particular evidence unless and until the truth of such inference is disproved.1 One such presumption is the presumption of legitimacy.2 This presumption has been embodied in the Indian Evidence Act, 1872 as Section 112. However, it would be a mistake to call the version embodied in S. 112 as a presumption, as defined by Stephen, because the provisions do not allow the disproof of legitimacy, unless the disproof is shown in one particular aspect, that is, with regard to absence of access for marital intercourse. According to S. 112, the fact that a child was born during the continuance of a marriage, is conclusive proof of the legitimacy of the child. However, this provision was drafted in an age when the drafters were not even in contemplation of the advancements in genetics as achieved in the present age. The provision has some meaning only if viewed from the perspective of the drafters, but if viewed from todays perspective, it is shocking as to how less importance is attached to the value of truth. Genetics has come a long way, that it is now possible to determine the paternity of a child, with great accuracy. The failure of S. 112 to incorporate the advancements in the field of paternity testing, calls for an urgent revaluation of the provision. This paper attempts to bring out the shortfalls in the present provision as regards the presumption of legitimacy as embodied in S. 112 and argues that, in the light of advancements in science as regards paternity testing, the recommendations of the Law Commission should be accepted. The paper is divided into two main parts. The first part is further divided into three sections. The first section briefly outlines the provisions of S. 112. The second section briefly states the present status of DNA paternity testing as regards its reliability. The third section undertakes a survey of the judicial approach to S. 112 as regards allowing DNA tests as evidence to disprove paternity. The second part argues that the provisions of S. 112 should be amended, so as to bring about a balance between the requirement of truth in judicial proceedings and the need for a presumption of legitimacy in a civilised society.
James Fitzjames Stephen, A Digest of the Law of Evidence 2 (BiblioLife Reproduction Series) (1879), http://books.google.co.in/books?id=hsFIz7aEY3cC&dq=stephen+evidence+digest&printsec=frontcover&source=bl&ots=W TzyKczrJp&sig=NPfdQRyvqIj9aAwsJ19DihOauiY&hl=en&ei=XeEgS_vEIrklAf5kpz8CQ&sa=X&oi=book_result&ct=result&resnum=3&ved=0CA0Q6AEwAg#v=onepage&q=&f=false (Accessed on December 1, 2009) 2 Ibid., at p. 107.
S. 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time during which the child could have been begotten.5 Conclusive proof has been defined in S. 4.6 Conclusive proof means evidence upon the production of which, or fact upon the proof of which, the judge is bound by law to regard some fact as proved, and to exclude evidence intended to disprove it.7 The word access in this section means the existence of opportunities for sexual intercourse, and it does not mean actual cohabitation.8 A finding of physical incapacity to procreate, amounts to non-access within the meaning of this section.9 However, even proof of the wifes adultery10 or the wifes own admissions of the childs illegitimacy will not overcome the presumption.11 The word begotten used here, means
C.D. Field, Commentary on the Law of Evidence 3944 (12th edn., Gopal S. Chaturvedi, ed., Delhi: Delhi Law House, 2001). 4 Sir John Woodroffe and Syed Amer Ali, Law of Evidence 2671 (6th edn., Gopi Nath, ed., Ahmedabad: Ahmedabad Law Book Co. Ltd., 1996) (1898). 5 Ibid., at p. 2655. 6 S. 4. Conclusive proofWhen one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence for the purpose of disproving it. 7 Supra note 1, at p. 2. 8 Goutham Kundu v. State of West Bengal, AIR 1993 SC 2295. 9 Supra note 4, at p. 2667. 10 Supra note 3, at p. 3948. 11 Supra note 3, at p. 3949.
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conceived and not born.12 This section is not applicable when maternity is under dispute.13 The standard of proof required to prove should be of a degree between the standard of proof in criminal cases and the test of preponderance of probabilities in civil cases.14
testing is set to take place through the formal setting of a trial, where there is no room for contamination of the sample, unlike the situation where the sample is lifted from a crime scene. DNA testing for paternity identification clearly does not involve any issues of contamination, and the conclusion can be said to be irreproachable. Nevertheless, there are some doubts cast on the reliability of DNA testing for an absolute positive identification. Therefore, the least common ground should be accepted, and thus, in the case of paternity identification, DNA evidence should be allowed even for positive identification, although, the conclusions may not be proof of a conclusive positive identification.24
way for the appellant to disprove paternity. The Court concluded that no person can be compelled to undergo a blood test, and even if blood test is ordered, the Court cannot use the evidence due to the provisions of S. 112.27 The Court also said that the presumption under S. 112 is a very strong but a rebuttable one. It also laid down conditions for ordering blood tests for the purposes of the trial.28 In Kanti Devi,29 the Supreme Court answered the question whether the standard of proof for proving nonaccess should be beyond reasonable doubt or preponderance of probabilities, by saying that it should be a degree in the middle. The Court also made certain other observations that point to the helplessness of the Court in not allowing DNA tests as evidence, even while upholding the principle behind the policy of the law leaning towards legitimacy.30 In Banarsi Dass,31 the Court set aside the order to conduct DNA test in a succession suit. The Court cited both Goutham Kundu and Kanti Devi, while trying to say that DNA test should not be directed as a matter of routine. The Court held that the Trial Court was incorrect in holding that the DNA test should be conclusive, since the documents produced by the respondents were not sufficient for the purpose of adjudication. In Sharada,32 the question before the Court was whether a party to a divorce proceeding can be compelled to undergo a medical test. The Court held that a matrimonial court had the power to order a person to undergo medical examination, and that such order would not be a violation of Article 21. However, it also held that the Court should exercise such a power if the applicant has a strong prima facie case, and if despite the order of the Court, the respondent refuses to undergo medical examination, the Court would be entitled to draw an adverse inference against the respondent. Although, this Court did not rule on DNA evidence, it is not difficult to infer that the same position would be applicable to DNA evidence also. However, since, under S. 112, the position would not change even if an adverse inference is drawn against the party refusing the DNA test, because the
Supra note 8, at Para 16. See Dr. Paramjit Kaur, DNA Fingerprinting and its Evidentiary Value, 02 (05) Criminal Law Journal (2006) 97, at p. 104. 28 (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. (5) No one can be compelled to give sample of blood for analysis. (Supra note 8, at Paragraph 26) 29 Supra note 14. 30 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 This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. (Supra note 14, at Paragraph 11) 31 Banarsi Dass v. Teeku Datta, (2005) 4 SC 449. 32 Sharda v. Dharmpal, AIR 2003 SC 3450.
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only way that the section allows for disproof of paternity is through proof of non-access. Thus, from the above discussion, it can be inferred that the Courts will not order DNA tests as a matter of course, and even if it does, the refusal of any party to comply with its orders could result in an adverse inference taken against that party. However, for the purposes of disproving paternity under S. 112, even an adverse inference taken will not be of any consequence. The following two cases will be discussed to bring out the latest position of the Courts regarding the usage of DNA tests under S. 112. In Geetha Mishra,33 the suit was under S. 13 of the Hindu Marriage Act, 1955 and the Trial Court allowed an application made by the husband to conduct DNA test by issuing a Commission under Rule 10A, Order 26 of the Civil Procedure Code. The wife challenged it by a petition under A. 227. The High Court hearing this petition set aside the impugned order. The husband had argued that the child was born in 1994, and that the wife had deserted him in 1992. However, the wife showed records to the contrary and the Court in this case, held that the husband had to prove non-access in the degree of proof as laid down in Goutham Kundu, and, in the alternative, a DNA test cannot be ordered. The Court reiterated the ratio of Goutham Kundu, Kanti Devi and Banarsi Dass. In Sudarshan Kumar,34 the suit was filed by the husband for a decree under S. 13 of the Hindu Marriage Act, 1955 under the ground of adultery. The husband alleged that he and his wife were separated within a week of their marriage, and also that the wife was spending her nights with another man. He said that the fact that the child was born in January 1998, proves the illegitimacy of the child, and consequently, adultery on the part of the wife. However, the wife succeeded in proving to the Court that the last that the husband and wife were together were in May, 1997. The husband argued that he could produce the conclusive evidence if the child was subjected to DNA tests, and also that the refusal of the wife shows her guilt. The Court, among other things, held that it was for the husband to prove the case and he cannot rely on the weakness of the case of the wife. The Court also rejected the husbands request for taking an adverse inference from the refusal of the wife to allow the child to undergo DNA test. Thus, these cases follow the ratio laid down in Goutham Kundu and Kanti Devi, and point out the futility of requesting for DNA tests in the present framework of S. 112. However, in Jyoti Ammal,35 a Single Judge Bench of the Madras High Court reached a different position, although apparently, following Kanti Devi and Banarsi Dass. This case was an appeal against the decree of divorce given and against the dismissal of an application of maintenance filed by the wife. The Court in this case reiterated the position laid down in Kanti Devi regarding the standard of proof to
Geetha Mishra v. Krishna Mohan Mishra, 2009 (2) MPHT 64. Sudarshan Kumar v. Saroj Bala, (MANU/PH/0608/2009) (Judgment delivered on 23/09/2009 at the High Court of Punjab and Haryana at Chandigarh). 35 Jyoti Ammal and Minor A. Sasikumar v. K. Anjan, I (2007) DMC 756.
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be applied while proving non-access under S. 112, but its conclusions point to a disregard of the higher standard of proof required and seems to give credence to irrelevant materials in coming to the conclusion that the father had proved non-access. The researcher did not find even one evidence given by the husband which positively established non-access, but the Court relied on the weakness of the wifes36 case in arriving at the conclusion that the evidence of the husband should be preferred to that of the wifes.37 The DNA report was accepted by the Court as evidence, and the expert witnesses called on testified that the results of the test are conclusive that the husband is not the father of the child in question.38 The researcher submits that this case is incorrectly decided, going by the provisions of S. 112 and the holdings of the Court in Goutham Kundu and Kanti Devi. This case is interesting because although the Court held that the husband had proved non-access, this conclusion is wrong, and a right decision would have pointed to the inadequacy of the evidence given to prove non-access. Nevertheless, the DNA test conclusively proves the illegitimacy of the child. Thus, this goes on to show that the existing provisions under S. 112 are inadequate in bringing out the truth as regards legitimacy, in the face of conclusiveness of DNA tests.
However, even these weaknesses of the wifes case are not substantial. In Paragraph 6, the Court says that If wife, during the subsistence of her marriage, voluntarily has sexual intercourse with a person other than her spouse, then husband is entitled to have a decree of divorce. Such an act, would not have been done openly but on the other hand, it is always done in secrecy. Therefore it is well-nigh impossible for any court to expect direct evidence. The Court relied on the following weaknesses of the wifes case in coming to the conclusion that the husbands evidence should be preferred to that of the wifes. First, the fact that the wife had delayed in sending a reply to the husbands accusation of adultery. In Paragraph 7, it says that If the allegation made against the wife is utter falsehood, one would expect the wife to bounce back immediately denying the accusation. But in this case, wife had taken a sweet long time of almost 10 months to reply. Second, for minor inconsistencies in the evidence of the wife regarding an inconsequential fact, the Court observes in Paragraph 9 that: Therefore we are wondering as to why we should not hold that wife has no regard for truth and consistency in her case. Third, the Court in Paragraph 10, rejects the claim of the wife that she had to undergo abortion on her own because of the refusal of the husband to take her to a particular hospital in the locality, saying that it cannot so any reason as to why the husband would have refused this request. The wife had claimed that she had to undergo two previous abortions at the instance of the husband through native Doctors. 37 Supra note 35, at Paragraph 11. 38 In Paragraph 12, the Court says that There is not even a suggestion to C.W.1 that he is incompetent to conduct the DNA test. Therefore we are unable to eliminate the evidence of C.W.1 and Ex.C.1 from consideration. The DNA test excludes Anjan as the father of the disputed child. Therefore we hold that husband had no access to his wife during the time she could have begotten the child and expert's evidence excludes husband as the father of the disputed child. If this is our conclusion, then it must be held that the ground put forward for divorce is established.
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amendment to S. 112, which was incorporated in the Indian Evidence (Amendment) Bill, 2003.40 The proposed amendment allows DNA tests only for the purpose of disproving that the husband is the father of the child. It also provides that the DNA test shall be done in the case of the man, with the consent of the man, and in the case of the child, with the consent of the Court. The proposed amendment does not allow for positive identification and retains the provision of conclusive proof. The Law Commission has not recommended that shall presume be substituted for conclusive proof, and the researcher agrees with this step because this would mean that the value attached to the policy considerations behind the presumption is not set aside. The considerations for truth are also retained in the Law Commissions recommendation because even though DNA tests are useful for positive identification as well, the provision for admitting DNA evidence for disproving paternity is enough for the purpose of preventing any possible injustice. If there is any requirement of proving the positive identification of a person in cases involving issues of paternity, recourse can be had to S. 9, and DNA evidence should be allowed in those cases. Thus, through its proposed amendment to Section 112, the Law Commission has struck a harmonious balance between considerations of truth and policy in the debate surrounding the presumption of legitimacy.
S. 112. The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days, (i) after the marriage was declared nullity, the mother remaining unmarried, or (ii) after the marriage was avoided by dissolution, the mother remaining unmarried, shall be conclusive proof that such person is the legitimate child of that man, unless (a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or (b) it is conclusively established, by tests conducted at the expense of that man, namely, (i) medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or (ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the Court, that that man is not the father of the child; or (iii) DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the Court, that that man is not the father of the child; and Provided that the Court is satisfied that the test under sub-clause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to accepted procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that that man is not the father of the child. Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him. Explanation I: For the purpose of sub clause (iii) of clause (b), the words DNA genetic printing tests shall mean the tests conducted by way of samples relatable to the husband and child and the words DNA mean Deoxyribo-Nucleic Acid. Explanation II: For the purposes of this section, the words valid marriage shall mean a void marriage till it is declared nullity or a voidable marriage till it is avoided by dissolution, where, by any enactment for the time being in force, it is provided that the children of such marriages which are declared nullity or avoided by dissolution, shall nevertheless be legitimate. (Page 519 of the 185th Report of the Law Commission of India).
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CONCLUSION
This paper concludes that the recommendation of the Law Commission of India regarding S. 112 is the optimal solution for the obsolete and unreasonable provisions of S. 112. S. 112 is an example of how a justified provision becomes unreasonable due to the progress in technology and science. The present framework of S. 112 defends a proposition that men are merely fat wallets, that, irrespective of their paternity of a child, they are required to demonstrate their fatherhood for the child, merely because time has rendered a proposition of law as unreasonable. The Judiciary is rendered helpless in changing according to the progress in technology because of the strictness of the provisions of S. 112. The Presumption of Legitimacy is one that is required to be endorsed due to considerations of policy. DNA testing is conclusive for negative identification and can be said to be fairly reliable for positive identification as well. The only solution which would incorporate both the truth that can come out from DNA tests and the necessity of a presumption of legitimacy to be embedded in the law of a civilised nation, seems to be a change in the section itself, which has been attempted by the Law Commission of India in an admirable manner. The researcher hopes that the recommendations endorsed by the Law Commission, as incorporated in the Indian Evidence (Amendment) Bill, 2003, is passed without undue delay, so that this anomaly in Evidence Law is rectified at the earliest.
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ANNOTATED BIBLIOGRAPHY
Articles
Brie S. Rogers, The Presumption of Paternity in Child Support Cases, 70 University of Cincinnati Law Review 1151 (2002).
This article reviews the law regarding presumption of paternity related to child support cases. The presumption of paternity and the policy considerations behind it are examined in detail in the first section of the article, and the researcher profited most from this section. The rest of the article analysed case-law and statutes related to the presumption of paternity. The article concludes that the presumption is not a profitable development even in terms of policy considerations where divorce is involved.
Dr. Paramjit Kaur, DNA Fingerprinting and its Evidentiary Value, 02 (05) Criminal Law Journal (2006) 97.
This article provides a basic explanation of DNA fingerprinting, and after a discussion on the constitutionality of DNA evidence, it concludes that there is no potential constitutional hindrance to the admissibility of DNA evidence. The article also analyses the cases relating to S. 112, including the Law Commission Report recommendations. A final section of the article briefly summarises the positions of DNA evidence in other countries. The researcher profited from this article as a basic reading in coming to an understanding of the position of DNA evidence in India and other countries.
Dr. Durga Das Panda, Maintenance Proceedings, Adultery and DNA fingerprinting, 11 Criminal Law Journal (2003) 324.
This article argues against the unscientific nature of the non-access criteria in S. 112. The article also presents a brief explanation of DNA and its evidentiary value. This article argues that DNA evidence can be taken as conclusive proof regarding parentage. The article proved useful by giving an insight into the status of DNA evidence in particular reference to paternity identification. The article is also useful because of the discussion related to adultery vis--vis DNA tests under S. 112.
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Ambika Singh and Tanya Aggarwal, Evidentiary Aspects of DNA Fingerprinting, 01 (02) Criminal Law Journal (2006) 46.
This article explains the process of DNA fingerprinting and the problems of collecting evidence from a crime scene. The article also discusses the nature of expert testimony involved in DNA fingerprinting analysis and makes a concise, but profitable analysis of the important cases relating to the use of DNA evidence. The article makes a more detailed analysis of the Priyadarshini Mattoo case.
Lalji Singh, DNA Profiling and its Applications, 60 (09 & 10) Current Science (1991) 580, http://www.ias.ac.in/j_archive/currsci/60/8/580-585/viewpage.html (Accessed on December 1, 2009).
This article was written in 1991, and although outdated in 2009, it explains the basic processes of DNA fingerprinting and the evidentiary value of the tests in resolving crime. The article also deals with the different varieties of probes used as markers in DNA fingerprinting tests. The article serves as a useful basic reading regarding the evidentiary aspects of DNA.
Charles M. Stromm, Lawyers Guide to the Science of DNA testing, 87 Illinois Bar Journal 18 (1999).
This article presents a clear and concise picture of the various techniques involved for DNA testing after a basic explanation of the structure and functions of DNA. It explains and evaluates the five current methods of DNA testing: 1) multi locus probe testing; 2) single locus restriction fragment length polymorphism; 3) polymerase chain reaction testing using amplified length polymorphism (AMPFLP); 4) PCR testing using dot blot technology; and 5) mitochondrial DNA sequencing.
Books
Dr. Wilson Wall, Genetics and DNA Technology (London: Cavendish Publishing Limited, 2002).
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Sir John Woodroffe and Syed Amer Ali, Law of Evidence (6th edn., Gopi Nath, ed., Ahmedabad: Ahmedabad Law Book Co. Ltd., 1996) (1898). C.D. Field, Commentary on the Law of Evidence (12th edn., Gopal S. Chaturvedi, ed., Delhi: Delhi Law House, 2001). James Fitzjames Stephen, A Digest of the Law of Evidence (BiblioLife Reproduction Series) (1879), http://books.google.co.in/books?id=hsFIz7aEY3cC&dq=stephen+evidence+digest&printsec=fr ontcover&source=bl&ots=WTzyKczrJp&sig=NPfdQRyvqIj9aAwsJ19DihOauiY&hl=en&ei=X eEgS_vEIrklAf5kpz8CQ&sa=X&oi=book_result&ct=result&resnum=3&ved=0CA0Q6AEwAg#v=one page&q=&f=false (Accessed on December 1, 2009)
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1991. She was given maintenance by the Trial Court and the husband appealed against this order. This petition requests for an order for blood tests and has been filed while the appeal is pending. The petition was rejected. Revision against this to the High Court was also rejected. The Court analysed the position in England and held the much-cited five points, which have been reproduced in foot-note 28. This case has been used as it is the most important case which lays down the conditions in which a Court may order a blood test and the effects of refusal to comply with the order.
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the order of the Court, the person does not undergo the test. This case has been discussed because the conclusions reached can be used even in a case of DNA testing.
Sudarshan Kumar v. Saroj Bala, (MANU/PH/0608/2009) (Judgment delivered on 23/09/2009 at the High Court of Punjab and Haryana at Chandigarh).
This is a single judge decision in the High Court of Punjab and Haryana. The facts of this case are discussed on page 8 in adequate detail. The purpose of using this case was to bring out the most recent position of the Court in relation to the fact whether DNA test can be ordered by a Court and if so, what is the effect of refusal to subject to the order. The Court reiterated the position in Goutham Kundu that DNA tests cannot be ordered as a matter of course, and also said that the refusal on the part of the wife to consent to the DNA testing of the child in this case, should not be taken as adverse inference. However, even taking an adverse inference from the refusal of the party does not amount to much effect, as the party is nevertheless bound by the strict provisions of S. 112
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