DNA Testing in Civil and Criminal Matters.pptx

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1. DNA TESTING IN CIVIL AND CRIMINAL MATTERS

2. DNA : Deoxyribonucleic Acid Evidentiary value of DNA report- very strong. DNA Testing CIVIL MATTERS CRIMINAL MATTERS ARTICLE 21 ARTICLE 20(3) ARTICLE 21 Purpose of DNA Testing Establishment of the identity or Establishment of the relationship.

3. DNA Testing in Criminal Matters Violation of Article 20(3) of the Constitution: Art.20(3) is prohibitive against compulsion to give self-incriminating evidence. Art.20(3) is for something totally within the personal knowledge of the accused and not with respect to some substance or material thing like hair sample or blood sample and hence the accused can be compelled to give such samples. Violation of Article 21 of the Constitution: Violation of Right to Privacy towards hair, blood, etc.- right not to give them to anyone else. Violation of Right to Human Dignity. A crime is considered to be a crime against the society at large and societal interest is paramount. Hence Fundamental Rights do not remain absolute and can be restricted to that extent. In criminal matters as a matter of routine DNA samples can be taken as Art.20(3) is not being violated and the rights under Art.21 are not absolute.

4. DNA Testing in Civil Matters Occasion of DNA sampling arises mostly in the cases of Paternity. The father denies paternity and the relationship has to be proved. He denies to give samples and pleas: Right to Privacy under Art.21 Right to Human Dignity under Art.21 Right to Reputation under Art.21 Art.21 cannot be curtailed as easily here as in criminal cases as it is a matter of private interest between two individuals and not a societal interest. Goutam Kundu vs. State of West Bengal and another(1993 SC) [2 Judges Bench] Held: In civil matters a person cannot be compelled to give blood samples for any kind of medical test or blood profiling. Art.20(3) is not applicable here as it is only applicable in criminal cases.

5. This Judgment has to be restricted to the of its own particular facts. In this case under Section 112-Indian Evidence Act the conclusive proof of his being the father of the child was raised, in such a case DNA test cannot be compelled. In paternity related matters it is a matter of public policy to have a special approach for women and children. Art.15(3) talks about special provisions for women and children, the Judiciary should also be tilted in same frame of mind. Father is denying the paternity. 1. Is he not responsible to bear child’s entire expenses? 2. Is it not a matter of dignity for the child that his father accepts that he/she is his child? 3. Is it not a matter of right for the child to get all the benefits provided by law from his father? Right to Privacy of father vis-à-vis Right to Dignity and social status of the child If the denial amounts to grave injustice to the child and the court is satisfied that there are prima facie evidences that he may be his child, then in such cases despite the Right to Privacy and Goutam Kundu judgment the court may always compel the respondent to give the samples- normally only higher courts

6. After the Goutam Kundu judgment several 2 judges bench have allowed the DNA testing Amarjit Kaur vs Harbhajan Singh and another (2003SC) [2 judges bench] ( D.Raju J. and H.Sema J. Shri Banarsi Dass vs.Teeku Dutta (2005 SC) [2judges bench] (Arijit Pasayat J. and S.H.Kapadia J.) Judgment delivered by Arijit Pasayat J. In both the cases above the Court held that whether DNA Test will be allowed or not depends upon the circumstances of the case and the Court has the discretion to decide in light of the facts of the particular case. Kanchan Bedi vs Gurpreet Singh Bedi (2003 Delhi HC) [Vikramjit Sen J.] In a maintenance suit by a minor if the respondent denies paternity, then the Court has to examine the entire circumstances of the case and have to see the effect of denial upon the interest of the child and thereupon it may compel the respondent to undergo the medical test. Rohit Shekhar vs Shri Narayan Dutt Tiwari (2011 Delhi HC) [Gita Mittal J.] N.D. Tiwari case Right to Social Dignity of Child u / Art.21 Freedom of Speech and Expression u / Art.19(1)(a) Prima Facie evidences to show that he had been behaving like his father Also affecting the Dignity of his mother Hence DNA testing was allowed

7. Conclusion : In Criminal matters it is crime detection As a general rule one has to give his samples. In Civil matters it is public policy The Court has to examine the circumstances case by case- no hard and fast universal rule. The balance has to be drawn by the Court- if grave injustice is caused to the child, the Court will allow the DNA sampling

8. DNA Testing Criminal Matters Civil Matters Article 20(3) Article 21 Article 20(3) Article 21 Never applicable as it is a civil matter Individual interest can be limited as societal interest is involved As not something within the personal knowledge of the accused To be examined case by case Circumstantial, not universal Universal

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