In which cases dna profiling can be ordered
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Transcript of In which cases dna profiling can be ordered
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In which cases DNA test can be ordered
1. Hindu Marriage Act, 1955 Section 13 – DNA Test– Divorce Petition – petitioner claiming DNA Testof himself and child born to wife to substantiateallegations of infidelity – DNA test is the onlyway to substantiate or dislodge allegations ofinfidelity – court can pass an order of DNA test. 1.1. Dipanwita Roy v/s RonobrotoRoy, AIR 2015SC 418.
2. Evidence Act (1 of 1872), S.112 Paternity ofchild DNA test Section 112 of the Evidence Actwas enacted at a time when the modern scientificadvancement and DNA test were not even incontemplation of the Legislature. The result ofDNA test is said to be scientifically accurate.Although Section 112 raises a presumption ofconclusive proof on satisfaction of the conditionsenumerated therein but the same is rebuttable. Thepresumption may afford legitimate means ofarriving at an affirmative legal conclusion. Whilethe truth or fact is known, there is no need orroom for any presumption. Where there is evidenceto the contrary, the presumption is rebuttable andmust yield to proof. Interest of justice is bestserved by ascertaining the truth and the courtshould be furnished with the best availablescience and may not be left to bank uponpresumptions, there is distinction between a legalfiction and the presumption of a fact. Legalfiction assumes existence of a fact which may notreally exist. However presumption of a factdepends on satisfaction of certain circumstances.Those circumstances logically would lead to thefact sought to be presumed. Section 112 of theEvidence Act does not create a legal fiction butprovides for presumption.
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2.1. Nandlal Wasudeo Badwaik v. Lata NandlalBadwaik, AIR 2014 SC 932.
3. Criminal P.C. (2 of 1974), S.125(1) EvidenceAct (1 of 1872), S.45 Maintenance Claim bywife and daughter Total denial of marriage andpaternity by husband In such case, onlyalternative left is to prove relationship throughscientific examination DNA test directed to beconducted by Court. 3.1. Madharapu Prashu Ram v. Shaik Jainbhee,2013 CR LJ 1077.
4. Criminal P.C. (2 of 1974), S.125 Maintenance Claim of maintenance forillegitimate male child Father disputingpaternity of child Parties agreed to resolvedispute through DNA test DNA report wasnegative, petitioner not found biological fatherof child In such circumstances claim formaintenance not tenable against alleged father ofchild. 4.1. Gobinda Neogi v. Smt. Jhuma Rani Saha,2012 CR LJ 1897.
5. Evidence Act (1 of 1872), S.112 Paternity ofchild Proof Husband went abroad in Oct. 2005and returned only on 152007 Child born on 1812008 Average duration of pregnancy is 266 daysfrom conception Considering date of conceptionas 152007 or within few days after return ofhusband and calculating date of confinement, therewas every possibility for having wife conceivedfrom husband after his return from abroad andhaving delivery of full grown baby because date ofdelivery was on 263rd day from 1st date of access Considering photographs child appeared to beminiature of husband Directing for second testnot proper as plea of nonaccess and manipulation
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of DNA typing report not established. 5.1. Shibu M. Daniel v. Diana T. George, 2012CR LJ 4276.
6. Evidence Act (1 of 1872), S.112, S.45 DNAtest Petition for Filed by Petitioner No. 1for DNA test of her daughter/petitioner No. 2 Petitioner No. 1 was legally married wife ofopposite party During maintenance proceedings,request for DNA test was made Stand of oppositeparty that at no point of time he establishedsexual relation with petitioner No. 1 after theirmarriage since he had no access to her Andpetitioner No. 2 was born to petitioner No. 1 fromearlier wedlock No clear and satisfactory proofof nonaccess Order passed by Family Courtrejecting request for DNA test to establishpaternity Is, therefore, liable to be set aside. 6.1. Babita Devi @ Babali v. State ofJharkhand, 2011 CrLJ 3643.
7. Criminal P.C. (2 of 1974), S.53A arrest rape Examination of person accused of rape Procedure of getting DNA test or analysis andmatching of semen of accused Is necessary tomake it a foolproof case. 7.1. Krishan Kumar Malik v. State of Haryana,2011 CrLJ 4274.
8. Criminal P.C. (2 of 1974), S.53A (inserted byAct 25 of 2005) selfincrimination examination of accused RAPE Testimonialcompulsion Person accused of an offence of rape Taking sample of blood of accused without hisconsent for purpose of DNA test Not testimonialcompulsion Will not incriminate him Notviolative of Art.20(3) S.53A of Criminal P.C.not ultra vires of Constitution. 8.1. Halappa v. State of Karnataka, 2010 CrLJ
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4341.
9. Evidence Act (1 of 1872), S.45 DNA test Dispute in respect of parentage of minor girl Serious allegations were levelled againsttechnical officer who took blood sample of partiesat Centre for DNA Finger Printing and Diagnostics(CDFD) As parties have made all kinds of wildallegations, first DNA test conducted in matterdeserves to be ignored In view of letter writtenby CDFD tendering apology, order for second DNAtest is proper. But Second DNA test It cannot beordered at choice of place of one of parties i.e.husband. 9.1. Amar Sharma v. Smt. Seema Sharma, 2008CRLJ 3445. Vishal Motising Vasava v. State ofGujarat, (2004) Cri LJ 3086 (Guj) relied upon,wherein it is held that DNA test Order forconducting of second DNA test not illegal orwithout jurisdiction However, order forconducting such test at particular laboratory, onrequest of complainant, would be illegal.
10.In Goutam Kundu v. State of W. B. and another,AIR 1993 SC 2295, following guidelines given forconducting DNA profile:(1) That Courts in India cannot order blood testas a matter of course. (2) Wherever applications are made for such prayerin order to have roving inquiry, the prayer forblood test cannot be entertained. (3) There must be a strong prima facie case inthat the husband must establish nonaccess inorder to dispel the presumption arising under S.112 of the Evidence Act. (4) The Court must carefully examine as to whatwould be the consequence of ordering the bloodtest' whether it will have the effect of brandinga child as a bastard and the mother as an unchaste
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woman. (5) No one can be compelled to give sample ofblood for analysis.
11. Evidence Act (1 of 1872), S.45, S.112 DNAtest Maintenance claim by respondentwife Petitioner denied marriage with respondent andpaternity of child Court can ask him to undergotest, which will set at rest dispute regardingpaternity Impugned order directing petitioner toundergo DNA test – Proper. 11.1. Mothyukuri Shivakumar @ Chitti Babu v.Mothukuri Narayanamma, 2008 CrLJ 4183.
12. Evidence Act (1 of 1872), S.112 EVIDENCE MAXIMS Presumption as to legitimacy DNA testto rebut presumption Maxim "Pater est quemnuptiae demonstrant" (father is one whom marriageindicates) Child born during valid marriage isconclusive proof of legitimacy unless strong andcogent evidence is led to prove otherwise Husband joining duties in Border Security Force Returning home to find wife pregnant No cogentevidence led to show that husband did not haveaccess to wife Even pleadings in that regardwere vague Law requires strict proof to rebutpresumption In absence of such, prayer for DNAtest cannot be allowed on vague pleadings. 12.1. Heera Singh v. State of U.P., 2005 CR LJ3222.
13.Evidence Act (1 of 1872) , S.45 , S.112 Petition for determining paternity by DNA test Maintenance proceedings Party disputingpaternity of child has to prove his 'nonaccess'with mother of child during relevant time Presumption under S. 112 will have to be displacedby leading strong preponderance of evidence andnot by mere filing a petition for determining the
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paternity by medical tests i.e. DNA Orderallowing petition is liable to be set aside. 13.1. Smt. Didde Sundara Mani v. Didde VenkataSubbarao, 2005 CRLJ 3618.
14.(A) Criminal P.C. (2 of 1974), S.125 Scopeof proceedings Solemnisation of marriage betweenparties Exactly 10 months gap in marriage ofparties and birth of child Such period issufficient gestation period regarding birth ofchild out of valid marriage Strong presumptionunder S. 112 of Evidence Act arises aboutlegitimacy of child Plea by husband that wifewas leading adulterous life and therefore prayerfor DNA test Not permissible. 14.1. Partha Majumdar v. Smt. SharmisthaMajumdar, 2005 CRLJ 3834.
15. Criminal P.C. (2 of 1974), S.166B Investigation on request of foreign authority Appellant was a suspect of murder in Canada Canadian Authorities requested Ministry of HomeAffairs, Govt. of India to interview appellant andobtain on "voluntary basis" his statement and hisblood for DNA analysis in a manner acceptable toCanadian Court Appellant was not willing to makehis statement or give his blood samples In suchcase CBI cannot take recourse to Section 166B andcompel appellant to make statement or give bloodsamples. 15.1. Narinder Singh Bogarh v. State of Punjab,2004 CRLJ 1446 (SC).
16.(A) Criminal P.C. (2 of 1974) , S.156 Investigation Conduct of DNA finger printingtest Accused cannot be permitted to put his ownexpert either to participate in such investigationor to watch such investigation Therefore, prayerby accused to engage DNA Forensic of their own
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choice or to appoint an observer Cannot begranted It may prejudice defence or prosecutionbecause it would amount to interference in processof investigation. 16.1. Chandan Panalal Jaiswal v. State ofGujarat, 2004 CRLJ 2992 (Guj).
17. Evidence Act (1 of 1872), S.112 Legitimacyof child Determination Maintainanceproceedings Claim by wife and her minor child Father denying paternity of child Court cannotcompel father to submit himself to DNA test. 17.1. Syed Mohd. Ghouse v. Noorunnisa Begum,2001 CRLJ 2028.
18. Evidence Act (1 of 1872), S.112 Evidence oflegitimacy Paternity of child Blood test Noone can be compelled to undergo blood test Bloodtest should be conducted only with consent of theperson. 18.1. Sajeera v. P. K. Salim, 2000 CRLJ 1208.
19. Criminal P.C. (2 of 1974), S.125 Maintenance Grant of Claim made by destitutewife and her minor child Husband denyingexistence of marriage and parenthood of minorchild Marriage between parties proved by strongevidence regarding ceremony of marriage Moreoverdefiant stand of husband in refusing to undergoDNA test leading to strong prima faciesatisfaction as to existence of marriage andpaternity of minor child Grant of maintenance towife and child Was proper. 19.1. K. Selvaraj alias Surendran, SurendraVilasom Veedu v. P. Jayakumary, 2000 CRLJ 4748.
20. Criminal P.C. (2 of 1974), S.125 Maintenance Application for by illegitimate son Proof of parenthood Petitioner's claim that
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respondent was his putative father Result of DNAtest concluding that respondent was biologicalfather of petitioner Respondent, thus held to beputative father of petitioner Liable to maintainpetitioner though he is his illegitimate son. 20.1. Anil Kumar, v. Turaka Kondala Rao, 1998CRLJ 4279.
21. Evidence Act (1 of 1872) , S.112 Paternityof child Evidence of nonaccess Marriagetaking place on 831983 From February, 1983till 2751983 no sexual intercourse since wifewas suffering from stomachache and problem ofmenstruation Wife deserting petitioner andleaving for her parents house on 27583 Nocohabitation after that Child born on 311984was alleged to be through illicit relationship –Held sufficient case made out by petitioner Court can direct respondent to give blood samplethough it cannot compel her to do so But Courtcan draw adverse inference from refusal to giveblood sample. 21.1. Sadashiv Mallikarjun Kheradkar, v. Smt.Nandini Sadashiv Kheradkar, 1995 CRLJ 4090.