The Indian courts and Deoxyribonucleic (DNA) test 

Under Section 45,[1] Expert opinion is a kind of evidence which is based on the special skill or “knowledge” of an expert. Such an opinion is basically an opinion based on facts. When the court deems it to be necessary, it may call for the opinion of an expert who has such knowledge or training in subjects of foreign law, science, art, finger impressions etc. such an evidence is called expert evidence. DNA test is such a test which has to be conducted in the presence of an expert and the evidence provided by the expert after the test falls within the ambit of Section 45. Such evidence however is simply advisory in nature.

In State of Himachal Pradesh vs. Jai lal[2], the court said that “The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination.” Therefore, the DNA test can simply be used for corroboration for the determination of paternity.[3]

Further, in Sumitra Devi vs. Bhikan Choudhar, the court held that a DNA test can only be taken in “exceptional cases where it is sought to redeem women and her child of their trauma of being branded as bastard and unchaste respectively.”[4] The court has to be mindful of the implication such a test might have on the woman and her child. In Goutam Kundu vs. State of West Bengal,[5] court further said there has to be strong prima facie case which shows “non-access” in order to dispel the presumption under Section 112 regarding the legitimacy of child. Strong preponderance of evidence is required not just balance of probabilities.

Moreover, in Kampti Devi vs. Poshi Ram,[6] the court held the judgement in favour of the child even when the child was proved to be illegitimate after a DNA test. The court upheld that unless “non-access” is proven, the child cannot be bastradized. The court acts as a “protective jurisdiction on behalf of an infant”[7] Therefore, the courts have held numerous things in precedents to safeguard the dignity of the women and ensure that the child isn’t bastardised.

[1] Indian Evidence Act [1872], s.45.

[2] Himachal Pradesh vs. Jai lal [1999] 7 SCC 280.

[3] Shantanu Chakrat, ‘Section 45 of the Indian Evidence Act,1872’ <> accessed 30 June 2021.

[4] Sumitra Devi vs. Bhikan Choudhary [1985] AIR 1985 SC 765.

[5] Goutam Kundu v. State of W.B., [1993].

[6] Kampti Devi vs. Poshi Ram [2001] 5 SCC 311.

[7] Goutam Kundu v. State of W.B., [1993].

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.


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