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International Family Law

The leading authority on international family law

29 AUG 2012

India - A milestone achieved – DNA profiling comes of age

DNA testing enforceable

A valuable right of a party to prove paternity by DNA testing has been tried, tested and proved. A person can now be physically compelled to give a blood sample for DNA profiling in compliance with a Civil Court order in a paternity action. The erudite judgment of the Delhi High Court of 27 April in Rohit Shekhar v Narayan Dutt Tiwari, has held that once a matrimonial or civil court exercises its inherent power to order a person to submit to a medical examination or it directs holding of a scientific, technical or expert investigation, which is resisted or refused by a party, the court is entitled to enforce such direction and not simply take the refusal on record to draw an adverse inference there from. The court also settled the issue that such mandatory testing upon an unwilling person is not violative of the Right to Life or privacy of a person under Art 21 of the Constitution though the power to direct a DNA test should be exercised after weighing all ‘pros and cons' and satisfying the "test of ‘eminent need'". However, this right has been restricted to the Civil Courts only by holding that the same reasoning cannot be applied in the context of criminal cases as the Supreme Court in Selvi v State of Karnataka (2010) 7 SCC 263 has held that Narcoanalysis, Polygraph (Lie-detector) test and BEAP(Brain Electrical Activation Profile) conducted against the will of a person are impermissible under criminal law where an accused cannot be compelled to make self incriminating statements to be a witness against himself.

Some previous instances

On 30 October 2006, in CBI v Santosh Kumar Singh, the Delhi High Court sentenced the accused to death for the rape and murder of a law student on 23 January 1996. The acquittal was turned into conviction by the High Court, amongst other grounds on the basis of the DNA Test conducted in the case by The Centre for Cellular and Molecular Biology, Hyderabad, which had clearly established the fact of rape even though the surgeon who had conducted the post mortem had ruled out rape. The Supreme Court has affirmed both the findings and the said sentence.

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