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Helix Vol.

2:101-104 (2012)

DNA-Dignity and Dissolution of Marriage


Dr. Sonia Dutt Sharma (LL.M. Ph.D)
Phone: 0141-2760321, 09461823463 Email Id.: sonia.duttsharma@yahoo.in

Received November 12, 2011; Accepted February 26, 2012; Published March 01, 2012

Abstract: DNA Technology is the blessing of science and it is serving the human society without any discrimination. The evolution of DNA technology from the laboratory to the forensic science is a science applied to legal or courtroom purposes, has involved scientific and legal era of the mankind. The negative approach of Indian Courts towards DNA testing and its application, in fact finding is very guarded one. The courts are very cautious in following for this test as they think, that it may go against the basic principle of Human Rights and Human Dignity, as the order for such test may interfere with the personal liberty of that person guarantees under Arti-21 of the constitution of India, which must be just, fair and reasonable one. The courts also feel that such an order may violate the right of an accused person protected under Arti-20 (3), of the Indian Constitution. According to Section 151 of code of civil Procdure-1908, Saves the inherent power of the Courts to investigate up to any extant as may be necessary for the ends of Justice ought to prevent abuse of the process of the court. So DNA test can be use in civil/family cases related to paternity, Succession and inheritance. The Legitimacy of a child can be determined without any doubt by the application of DNA Technology, and it can conclusively determine whether the child is legitimate or illegitimate. Key Words: Adultery, Begotten, Null & void Dignity, Dissolution, Guilt Theory, Inherent, Legitimacy, Non access. "Satyameva Jayate" is inscribed on the Indian Psyche and legal system, with no real manifestation in the outer world. The quest for truth is always overtaken by fact and logic. Realness has no reality or real place in the administration of Justice. At time, the loop hole is considered by the conscience of realist and is given due importance. The evolution of DNA technology from the laboratory to the forensic science; a science applied to legal or courtroom purposes, has involved scientific and legal era of the mankind. On the scientific side, DNA testing technology developed from relative obscurity twenty years ago on the front page news the announcement that the entire human genome has been mapped.

The first forensic or legal application of DNA testing occurred in 1986 in England by Sir J. Jeffery in the famous Collin's case. Since then, DNA technology has continued to be rapidly evolved. DNA technology had such a dramatic impact 'on crime detection1 and such has been magnitude of its success that even international crime prevention and Detection organization like "INTERPOL" 2 have also accepted it and are now whole heartedly, supporting the new crime investigation tool. What is DNA? DNA technology focuses on unique properties of on individual's genetic code. Its purpose is to determine of there is a match between these unique characters in samples from unknown source and the Crime Scene Evidence being tested. DNA is an abbreviation of "De-Oxyribo-Nucleic-Acid", which is found in all bodily fluids, tissues etc. It is found in every single cell of a person's body and each cell has identical DNA. The DNA technology focuses on unique properties of an individual's DNA Genetic Code. This technique springs from the idea that no two human beings except the monozygotic twins have same DNA. It is now established that two persons in size million people may have common DNA, but this is just a rare probability. Legal Implementation of DNA Technology Like a fingerprint, DNA is a type of bio-information that can be used to identify people and is therefore a valuable tool in attempts to identify criminal offenders. Yet compelling persons to provide their DNA to Law enforcement agencies raises Concerns about informed consent, individual and familial privacy, the use of genetic information in the criminal and (now civil also) judicial system, and the retention and use of DNA profiles and samples. The learned forensic scientists can use DNA in Blood, Semen, Skin, Saliva or hair at a crime scene to identify a perpetrator. This process is called Genetic Fingerprinting, or more accurately, DNA profiling. This method is extremely reliable method for identifying.

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Helix Vol. 2:101-104 (2012)


This method is extremely reliable method for identifying criminals. People convicted of certain types of crimes may be required to provide a sample of DNA for a Database. This has helped investigators solve old cases where only a DNA sample was obtained from the scene. DNA profiling can also be used to identify victims of mass casualty incident and now, DNA test is going to be the best solution of paternity Disputes and question of legitimacies of a child. International Legislation on DNA Forensics: The European Court of Human Rights in Strasbourg is expected to decide in 2008 whether the United Kingdom can permanently keep the DNA samples and profiles of criminal suspects who were never convicted of a crime, Since 2004, anyone aged 10 years, or over arrested in England or Wales for a "reasonable offense must provide a DNA sample to law enforcement officials. Certain information from their DNA, known as the DNA Profiles, then stored electronically in the National DNA Database. Containing 4.5 million DNA profiles, it was until recently the world's largest DNA databank. But now, that distinction goes to the United States, which is the world's largest data bank of DNA samples, of criminals and criminal suspects, with 5.6 million DNA profiles. The DNA profiles and Federal Legislation: State and federal forensic laboratories analyze DNA samples to obtain DNA profiles of people, and these profiles are stored in various electronic databases. The National DNA Index System (NDIS) contains the DNA profiles submitted by states and federal laboratories. The FBI's software program CODIS (combined DNA Index system) links the profiles in these databases. For there to be a CODIS "hit', two DNA profiles must be perfect matches on 13 regions, or loci, of the individual's DNA. DNA analysis backlog Elimination Act of 2000: Authorized the collection of DNA samples from individuals in federal custody; Probationers, parolees and people on supervised release who was convicted of certain violent crimes. Justice for All Acts of 2004: Authorized DNA collection from anyone convicted of a federal felony. Violence Against women Act of 2006 & Adam Walsh child protection and safety Act of 2006: Both Acts authorized federal officials to collect DNA samples from any federal arrestee and from individuals detained by federal officials who are not US. Citizens or lawful permanent resident aliens. US -DNA Identification Act 1994, DNA Technology Act, 2003. UK -DNA Protection Act, 1998 CANADA - DNA Identification Act, 1998 New Zealand-Criminal Investigation (Bodily Sample) Act 1998, are some leading International Laws on DNA. DNA Test Human, Dignity and Legal Confliction in India: The negative approach of Indian Courts towards DNA testing and its application, in fact finding is very guarded one. The courts are very cautious in following for this test as they think, that it may go against the basic principle of Human Rights and Human Dignity, as the order for such test may interfere with the personal liberty of that person guarantees under Arti-21 of the constitution of India*, which must be just, fair and reasonable one3. The courts also feel that such an order may violate the right of an accused person protected under Arti-20 (3)4, of the Indian Constitution. The Honorable Supreme Court in the land mark case of Gautam Kundu v/s state of West Bengal5, has held that: 1. 2. Courts in India cannot order blood test as a matter or course, Whenever applications are mode for such prayers in order to have roving inquiry the prayer for blood test cannot be entertained. There must be a strong 'prima facie' case in that the husband must establish non access in order to dispel the presumption arising under Sec. 112 of Indian Evidence Act. 1872. 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 bastared and the mother as an unchaste woman. No one can be compelled to give sample of blood for analysis.

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In the case of R. Rajgopal v/s state of Tamil Nadu 6 Honorable Supreme Court said again that. "It is an establishing fact that every citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education and other matter." Deriving analogy through the same case the Honorable Supreme Court in the case of Sri Banarasi Das v/s Miss Teeku

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Helix Vol. 2:101-104 (2012)


Dutta and others.7 Held that submitting to the DNA test in violation of Right to privacy under Arti-21 of Indian Constitution. Through in the case of Sharada v/s Dharmpal Mr. X v/s Hospital Z8, Ms.X v/s Mr. Z, it was held by the Honorable Court that "Article -21 is not an absolute right and restriction can be imposed on it for the prevention of Crime, disorder or protection of health or morals or protection of rights and freedom of others. Thus for criminal cases DNA test is the most accurate evidence. Justice Malimath Committee recommended that DNA expert being included in the list of Expert under section 295 (4) of code of Criminal Procedure, 1973. Section 53, 53(A), 54 of Cr.P.C. is not violative of Article 20 (3) of the constitution which permits protection against self-incrimination under section 156 and 174 of Cr.P.C. Thus, Justice Malimath committee report also recommended for amendment of section 482 of Cr.P.C. 1973. and the section-4 of the Identification of Prisoner's Act 1920, on lines of section-27 of Prevention of Terrorism Act-2002 (POTA) in following words:-"Every Court shall have inherent power to make such order as may be necessary to discover truth or to give effective order under this code or to prevent abuse of the process of the court or other wise to secure the ends of the Justice." DNA Test and Matrimonial Dissolution According to Section 151 of code of civil Procdure1908, Saves the inherent power of the Courts to investigate up to any extant as may be necessary for the ends of Justice ought to prevent abuse of the process of the court. So DNA test can be used in civil/family cases related to paternity, succession and inheritance. The Legitimacy of a disputed child can be determined without any doubt by the application of DNA Technology, and it can conclusively determine whether the child is legitimate or illegitimate. For ascertainment of legitimacy there is section 112 of Indian Evidence Act 1872 which run that: - "The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and Eighty days after it's dissolution, the mother remaining. Unmarried, shall be conclusive proof that he or she is the legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." Sec. 112 of the Act callousness of "no access" criteria and it is very difficult to prove by adducing the traditional methodology by giving evidence by oral or documentary evidence. An unchaste woman during day time, during the absence of husband at night, or during the stay in her parental home she may commit Unlawful sexual intercourse with any outsider without consent of her husband. In such situations, innocent husband is heavily penalized and child is recognized as a legitimate child of the married husband though the married wife leads an adulterous life by committing especially when the "no access" Criteria has not been proved, but honorable Supreme Court have stated that "Section 112 of Evidence Act prohibit any type of Blood test or medical examination for ascertain the paternity of child. The result of 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."9 But if DNA test can solve all the questions and complications, why is should not be permitted in family Disputes, The matter of paternity is not only related to legitimacy of child but also with existence of marital relationship. If in specific situations, stated above, the DNA test can prove adultery of wife, it shall be a ground of divorce in all family Laws: Hindu Marriage Act-1955, Sec. 13 (1) (i). The Divorce Act 1869-Section 10 (1) (with Christian Marriage Act. 1872), The Parsi marriage Act 1936, Sec 32 (d), Special marriage Act, 1954 Sec. 27 (1) (a) with Foreign marriage Act-1969. As per as "Guilt Theory" any party of spouse have the legal right to Dissolve their marriage on the ethical and legal ground of "Adultery" and a man can also declare his marriage-Null and void, (i) if the wife was pregnant by some other person other than the husband, at the time of marriage." According the sec-12 (1) (d) Hindu marriage Act, 1955, Section 25 (ii) Special Marriage Act 1954 and the foreign marriage Act 1969, and Sec. 32 (c). The Parsi Marriage Act 1936-(again a ground for Divorce). Conclusion: DNA test is a strong boon in Criminal Administration of Justice, but in civil cases the socio economic condition and the peculiarity in our country declare this test against of Human Dignity especially of child and woman. But the inherent power of courts in civil matters Sec.-151 C.P.C. 1908 should prevail for the sake of Justice, Truth, and Dignity of innocent person and transparency of Judicial Administration. So DNA technology can be use in the matters of Human Dignity, Human Right & Human Relationship, it

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Helix Vol. 2:101-104 (2012)


should be an essential part of Indian Judiciary and for that purpose we are eagerly waiting for an appropriate legislation in the Name of The DNA PROFILING BILL 2007-which is stating the infrastructure, standards, quality-control with assurance obligation of DNA laboratory, Information, Composition, Qualification of DNA profiling board & it's members, function and most important establishment of DNA data Bank. This bill comprehensively covers the wide field of DNA regarding criminal case, that why the name of Bill is DNA profiling Bill 2007, but it would be more fruitful if it contains certain provisions for the dignity and privacy of all the citizens. Thus this bill should be "DNA AND DIGNITY BILL". Reference: 1. Air. All India Reporter, 2. Alese Samuel- DNA Pest in Criminal investigation and paternity Disputes. 3. Cri.LJ. Criminal Law Journal. 4. DNA Identification in mass fatality Incidents, National Institute of Justice (Sept. 2006). 5. DNA profiling bill-2007. 6. Holly K. Fernandez, -"Genetic Privacy, Abandonment, and DNA Dragnets are IV Amendment Jurisprudence Adequate?" 7. Karan J. Mashke -DNA and Law Enforcement. 8. SCC-Supreme Court cases. 9. T. Shellberg, " DNA Justice speaks", Presentation for the American Prosecutors Research Institute, No. 20,2003. 10. www.wikipedia.org/dna.htm.

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