DNA Daddy: A Quest for Legitimacy in Indian Law

(Consequences of Rohit Shekhar vs. N. D. Tiwari case)

Dr. G. K. Goswami, IPS(UTTAR PRADESH POLICE)

On deputation to :

United Nations Office on Drug and Crime

December 2012

“There cannot be an illegitimate child, there can only be illegitimate parents”

- George Bernard Shaw

“Motherhood is a fact, fatherhood a belief.”

Legitimacy

• Legitimacy is the status of a child born to parents who are legally married to each other.

• A child is, or is presumed to be, legitimate if it is born anywhere in the world in ‘lawful wedlock’.

• Illegitimacy is the status of a child conceived outside of the marriage.

• “Presumption of legitimacy", assigned rights, duties and obligations to the concerned parties i.e. child, mother, father etc.

Legitimacy in various Countries

• Marriage is the cardinal rule in presuming legitimacy. However, forms of marriage may vary.

• With time live- n-relationship has also been legally accepted but with certain reservations.

• In UK, A child not born in lawful wedlock would, however, be regarded as legitimate if, it is legitimate by the law of the domicile States of both the parents at the time it was born.

.• In the US, a child born outside a legal marriage will loose

Child Support and inheritance rights if the fatherhood of the child is not legally established.

Presumption of Legitimacy in India

• Section -112 of Indian Evidence Act, 1872 –

- "Birth during marriage, conclusive proof of legitimacy".

- The legal presumption is similar to that of the Latin Maxim, ‘pater est quem muptice demonstrat’, meaning thereby-

‘he is the father whom the marriage indicates’.

• It is the ‘social father’ who get legal recognition and not the biological creator.

• Only exception is non-access to wife which is only a ground for separation or divorce.

Essential Ingredients of S- 112

• The child should have been born during the continuance of a valid marriage, or if the marriage was dissolved, within 280 days after its dissolution, the mother remaining unmarried.

• The parties to the marriage should have had access to each other at any time when the child could have been begotten.

Harsh realities in Life

• If a man marries a woman enceinte (pregnant) and the child is delivered even just after marriage – even if the marriage is declared void – the child would still be considered the offspring of the current husband and would be entitled for all rights like maintenance, inheritance etc.

• Where the child was born during the pendency of maintenance petition and the husband failed to prove "non-access" it was held that the child was legitimate off spring. But here, the point to be noted is that the wife was living an adulterous life.

…contd

Contd…

• Even if the husband is seriously ill, even then the issue of presumption, under Section - 112 cannot be rebutted.

• Even if the husband is impotent, then also the issue of presumption, under Section -112 cannot be rebutted.

• The woman got pregnant through artificial insemination without the consent of husband.

• Pregnancy through DNA theft, fallitio, condom content, IVF etc.

Issues of Live - in relationship: A New Social Paradigm

“Married in haste, we repent at leisure”

- William Congreve

• Its like a ‘test drive’ • consequence of the tussle between tradition and

modernity.• Living together without having formal ties of marriage• No cumbersome liabilities, enjoy freedom, no legal framework

for separation etc.• More propagated by Female Activists- As a symbol of

women emancipation

Contd…

• In India, the seeds of legal acceptance of live-in relationship may be traced in “The Domestic Violence Act, 2005” [S- 2(f)].

• D. Velusamy vs. D. Patchaiammal [SLP (Crl.) Nos. 2273-2274/2010]

The Supreme Court  held that, a relationship must be in the ‘nature of marriage’.• Couple must socially recognised as spouses.• Must have lived together in a ‘shared household’ as defined under

Section - 2(s) of the Act.• Lived together for ‘a significant period of time’. • Must attain legal marriageable age.• No previous marital obligations (otherwise led to Polygamy).• Must have voluntarily cohabited – No coercion, deceit or

fraud.

New Scientific tools to determine Legitimacy

Use of Scientific evidences in Judicial Process – Old Tradition

Buckly vs. Rice Thomas (1554) 1 Plowden 118. Quoted by Justice M. Jagannadha Rao, C.J. Kerala,1993(1) KLT p.19

As long ago as in mid 16th century, Justice Sauders expressed the concern shown in law by accepting guidance from scientific expertise.He stated- “….if matters arise in our law which concerns others sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is an honourable commendable thing in our law. We approve of them and encourage them as things worthy of commendation”.

DNA

• Deoxyribo Nucleic Acid (DNA) is the main constituent of the chromosomes of all organisms.

• DNA double helix structure was invented by Watson & Crick in 1953 and awarded Noble Prize.

• Basis for Biotechnology – A science of Wonders

DNA Fingerprinting

• Dr. Alec Jefferey from the University of Leicester is called Fahter of DNA Profiling.

• First introduced into criminal justice system in 1986 when assisted UK Police in investigation of potentially linked sexual assault coupled with murder of two young girls.

• DNA Technology provides a tool in the hands of police with a potential “genetic eyewitness”.

• The technique has multi-dimensional applications like personal identification, criminal identification, wildlife crime etc. apart from paternity and maternity determination etc.

• UK, USA and many counties have accepted the technique as evidence in criminal justice system but India has yet to accept. DNA Bill is still pending in Parliament

Sources of Biological Evidence• Blood

• Semen

• Saliva

• Urine

• Hair

• Teeth

• Bone

• TissueBlood stain

Only a very small amount of blood is needed to obtain a

DNA profile

Steps in DNA Fingerprinting:

Sample Obtained f rom Crime Scene or Paternity

I nvestigation

DNAExtraction

DNAQuantitation

PCR Amplificationof Multiple STR markers

Biology

Separation and Detection of PCR Products(STR Alleles)

Technology

Sample Genotype Determination

Genetics

Comparison of Sample Genotype to Other Sample

Results

I f match occurs, comparison of DNA profi le to population

databases

Generation of Case Report with Probability of Random

Match

Figure 1.2, J.M. Butler (2005) Forensic DNA Typing, 2nd Edition © 2005 Elsevier Academic Press

Applications of DNA FingerprintingDNA fingerprinting can be used for various purposes.

Crime Investigation

Family Matters

Medical DiagnosisPedigree Analysis

Seed-stock Identification

Defense RecordsSex-selection in Animals

Wildlife conservation

Authenticity of consumer products

Sam Sheppard Case

• Dr. Sam was convicted for life imprisonment for alleged murder of his four months pregnant wife Dr. Marilyn Sheppard in 1954 in Ohio. After conviction died in jail in 1970.

• His son had facilitated for conducting DNA Profiling and he was proved innocent in 2000.

• Consequently ‘Doctrine of Finality’ was relaxed and paved the way in U.K., for introducing The Criminal Justice Act-2003 for reopening trial in case of new & compelling evidence appears in heinous felony.

Attorney General Ms. Janet Reno rightly said-

“Convicted by juries, exonerated by science…”

Guidelines to conduct DNA Test

Gautam Kundu v. State of West Bengal (1993 AIR 2295 1435 )

• Courts in India cannot order blood test as a matter of routine.• Whenever applications are made 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 where 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 bastard and the mother as an unchaste woman.

• No one can be compelled to give sample of blood for analysis.

N. D. Tiwari vs. Rohit Shekhar Case

Background Facts

Mrs. Ujjawala Sharma got married to Mr. B. P. Sharma in 1962 and both were estranged since 1970.

Mrs. Sharma hail from a prominent political family and herself was politically active at National level. In political connection Mr. Tiwari came in touch with Mrs. Sharma and keep visiting her house since 1977.

Rohit Shekhar was born to Mrs. Sharma in 1979.

Mr. and Mrs. Sharma got divorce in 2006.

Legal Battle- Chronology of legal events

Sept 13, 2007: Rohit Shekhar files paternity suit in the Delhi High Court.

Apr 11, 2008: Due to technical flaws, fresh suit filed.

Nov 25: Single-judge bench of J Reva Khetrapal summons the A P Governor N. D. Tiwari to appear in person in her chamber on Dec 16. Tiwari challenges single judge order under CrPC exempting governor from attending court.

Nov 3, 2009: Single-judge bench of Justice S N Dhingra dismissed Shekhar's case on technical grounds of limitation and jurisdiction.

Mar 17, 2010: Division bench of Justice Vikramjit Sen and Manmohan Singh overrules single judge order and allows Shekhar's case to proceed as his residence was in Delhi.

Contd…

Apr 7: Single-judge bench of Justice J R Midha asks Tiwari to respond on photographs placed on record by Shekhar and his mother Ujjwala Sharma.

Dec 23: Single-judge bench of Justice S Ravindra Bhat directs Tiwari to give blood sample for DNA test.

Feb 7, 2011: Tiwari files appeal and division bench of justice Vikramjit Sen and Siddharth Mridul upholds order for giving blood sample.

Mar 18: Tiwari moves Supreme Court which refuses to stay the order for conducting DNA Test.

June 1: Ujjwala and Shekhar appeared to give blood samples but Tiwari backtracks.

Sept 23: Single-judge bench Justice Geeta Mittal says Tiwari's refusal is unjustified and malafide but he cannot be compelled to give blood sample.

Contd…

Apr 27, 2012: Shekhar challenges the order before division bench of HC, which sets aside the single-judge order.

Apr 27: Tiwari asked to comply with court order and on refusal, blood sample to be taken with police help.

May 1: Supreme Court refuses to entertain Tiwari's appeal against self incrimination and directs him to comply with order.

May 14: HC directs Tiwari not to leave the country before giving blood sample and orders CDFC to collect samples.

May 16: HC directs Tiwari, Ujjwala and Shekhar to be present before Joint Registrar, SC, on May 21 for giving blood samples.

May 26: Ujjwala and Shekhar give blood samples before Joint Registrar.

May 27: Tiwari moves Supreme Court vacation bench that he should not be compelled to give blood sample against his wish.

Contd…

May 28: SC rejects his plea and granted permission that his blood sample will be taken at his residence at Dehradun in the presence of District Judge of the State, Civil Surgeon, Pathologist, HC Joint Registrar, Mrs. Ujjwala and Shekhar.

May 29: Tiwari's blood sample was collected at Dehradun and sent to CDFD lab.

July 2: HC receives report of DNA test from the lab. July 20: Tiwari's move to HC for keeping the DNA test report

confidential. HC rejected the plea then he move to SC. July 27: SC rejected his plea for keeping his DNA report a

secret. Court opened the DNA Test report and declared-

“ND Tiwari is the biological father of Shekhar”.

The Court Judgment

• The Supreme Court held:

“There is of course the vital interest of child to not be branded illegitimate; yet the conclusiveness of the presumption created by the law in this regard must not act detriment to the interests of the child. The protective cocoon of legitimacy should not entomb the child's aspiration to learn the truth of her or his paternity.”

Salient Features and Legal Issues

• The Son but not Mother came forward to get recognition of his biological creator (can not call father - social term)- Unique case.

• The Apex Court large heartedly condoned the long delay in filing the suit since 1979.

• The Supreme Court deviate from the guidelines issued for performing the DNA Test to ascertain the paternity in Gautam Kundu case.

• The main deviations include –

a) - No routine test for paternity - while mother remains under obligation of valid marriage to avoid branding mother as unchaste and child as bastard.

Thus prima facie ratio decidendi “vital interest of child not to be branded illegitimate or mother unchaste” was overlooked.

contd….

b)- The accused was forced to give blood sample for testing. Forcing the accused to give blood sample - Does it amount to the violation of Art-20 (3) - self incrimination.

• The mother was already in the obligation of valid marriage, It cannot certainly be called live-in relationship. Hence was not it a case of extra- marital relationship? Won’t it amount to polygamy?

• How law accommodate both social and biological father together? Won’t it create status of having two father of a person?

• In case of legally established ‘social father’ can a child get status of legal heir and can demand lineage, inheritance or maintenance or social name from ‘biological father’?

• How far it is justified to make the DNA report Public? Won’t it amount to violation of Right to Privacy?

contd…

• The succession, maintenance etc. issues in the various Laws have also to be addressed as the rights and duties have to be redefined once the biological father gets recognition in the law- Is Indian society ready to accept it?

• In case of deviation from the guidelines issued in Gautam Kundu case by Supreme Court, what shall be the new guidelines to conduct DNA Test for ascertaining Paternity disputes?

What to do then….

• DNA Test should be incorporated under S-112 of The Indian Evidence Act, 1872 as a scientific tool to ascertain paternity disputes. Nearly 150 old legal assumptions in the law cannot over run the scientific advancement and in the era of gender equality. Law cannot discriminate in the pretext of protecting marriage and family.

• DNA expert should be included in the list of Expert under section 295 (4) of The Code of Criminal Procedure, 1973. (Recommd. of Justice Mallimath Comimittee-2003).

• Need to pass DNA - Bill by Indian Parliament urgently.• Need to have more clarity on live-in-relationship and its legal

implications otherwise society is going to face more such issues with time.

Contd…

• Need to establish accredited DNA diagnostic centers with trained manpower, across the country, to meet the burgeoning need to analyze the case exhibits which are piling in large numbers since years together and hence compounding in delayed justice.

• Check on DNA diagnostic centers in private sectors. A SOP and guidelines have to be designed in DNA Bill for the purpose.

• DNA Profiling should be used with “great care- good servant bad master” as there may be chances of gene theft or napping. Artificial insemination, sperm donation, sperm from fallitio or used condoms, surrogate mother etc. are various issues which further complicate the matter. So Friends be Cautious

Special Thanx

Special thanx to internet for valuable information, pics etc. used in this presentation.

Thank you