– By Sara Saleem
This article focused on the usage of DNA technology as evidence for resolving civil matters in different countries, but it also gave a brief background on when it was first used for criminal offences, followed by using the same as evidence in the civil cases as well. Moreover, it discussed the judgements of the courts of these countries, in which judges or the jury decided the cases on the basis of evidence received through DNA technology.
Introduction
DNA which stands for deoxyribonucleic acid, is a biological substance. It is used to determine DNA, which may be extracted from blood, semen, saliva, urine, face, hair, teeth, bone, tissues and cells. Sometimes, it becomes difficult for the Court to decide cases when such samples are unavailable or not used by it. Thus, it uses this technology as evidence to resolve the case in an effective, efficient and fair manner for aggrieved parties in any case before any Court.
This technology has been used in criminal and civil cases, but the same has been more used as evidence for criminal offences in comparison to civil wrongs. For the first time in medical history, in 1984, this technique was discovered by Sir Alec Jeffreys, who was a British geneticist working in the faculty of genetics at the University of Leicester, England. Two years later, the UK police department used his services for conducting DNA testing of a person who was accused of two rape murders, but the test resulted in negative and the said person was acquitted. The first persons were convicted on the basis of DNA evidence in the UK and USA in 1987. Although, both of these convictions were made against criminal offences, the same technology has also started to be used by different courts for resolving civil offences in different countries.
In the below-cited paragraphs, the usage of DNA technology as evidence in civil cases by the Courts of various countries has been discussed:
International best practices for the usage of DNA technology as evidence in the civil cases
In the later part of the 20th century, the Courts started to use DNA as evidence for the speedy disposal of cases in various countries, and for that purpose, it became an effective tool for solving civil offences in a short period. These cases include offences related to property, immigration, inheritance, family, maternity/paternity issues and others. Out of these, for resolution of maternity/paternity and inheritance/succession issues, evidence of DNA has been frequently used in most of the developed and developing countries of the world. In these cases, principles of the right to privacy and family life are sometimes comes in conflict with these tests, due to which, some countries do not adopt them as evidence in civil cases.
In the below-mentioned lines, judgements of courts of various jurisdictions are discussed:
Australia:
In Riggs & Camm[1], the Petitioner (Mother of the Child), sought the declaration of parentage, signed by the Respondent (Father of the Child) from the Court. After conducting DNA testing, it was proved that the respondent was the father of the child and the petitioner was directed to do all acts and things to bring a copy of these orders/declaration to the attention of the Father via the assistance of Services Australia (Child Support Registrar) so that respondent (father) would be made obliged to pay expenses of the child to the petitioner (mother).
In Farnell v Penhalluriack (No 2)[2], in the Supreme Court of Victoria, the Court deliberated upon the application moved by the Petitioner (Mother), to claim parentage for her daughter, against the Respondent (Alleged Father). To prove the claim, three DNA tests were conducted under the order of the Court, which proved contrary to the claim of the applicant. Hence, the application for the declaration of paternity moved by the petitioner against the respondent was dismissed.
South Africa:
In S v Van Tonder[3], there was a caseof driving a motor vehicle whilst under the influence of intoxicating liquor. To prove the guilt, a DNA test was conducted, but the Court also looked into the matter of whether blood, used for DNA had been tampered with or not. In the end, the Court held that “if the chain of custody is disputed, the state has to prove that the sample was properly sealed, that it reached the laboratory in the same condition as it was in when dispatched, and that it could not be opened without breaking the seal. If necessary, it will then be incumbent upon the state to subpoena the person who sealed, transported or received the sample to give evidence as to the correctness of the procedure.”
In Pillay v Krishna[4], the Court declared that “the onus of establishing a case in accordance with this standard is on the party who makes the assertion since if a person claims something from another in a court of law, he has to satisfy the court that he is entitled to it.”
United Kingdom: In the case of a Ghanaian boy (immigration case in the UK)[5], there was a dispute on immigration of a boy of Ghanian origin who settled with his mother in the UK, because he was refused entry into the country for lack of proof that he was the son of a woman who had the right of settlement in the U.K. Immigration authorities contended that the boy could be the nephew of the woman, not her son. DNA testing showed a high probability of a mother-son relationship. The U.K. Government accepted the test findings and admitted the boy.
In Docherty v McGlynn[6], the Court declared that in civil proceedings of various types (e.g. an action for damages for personal injury) the court might order a party to submit himself or herself to medical examination. Such orders were not enforced against a recalcitrant party but perhaps “sufficient sanction in respect of refusal to or temper such an order, is to be found in the consequential inference to be drawn adverse to the interest of the party in disobedience.” After a hearing on a reclaiming motion, the First Division granted both James Docherty and William McGlynn authority to have blood samples taken from Charlene Docherty, the child to be serologically tested for grouping.
United States of America : InDaubert v. Merrell Dow Pharmaceuticals Inc[7]., the issue was related to the damages caused to new-born babies due to the usage of a Medicine “Benedictine” by the pregnant mothers, manufactured by Merrell Dow Pharmaceuticals Inc, as it was claimed that the said medicines caused deformities in the child when he was born. In this case law, the Court established the Daubert Standard for evaluating the admissibility of scientific knowledge as evidence before US courts.
In California v Trombetta[8], between 1980 and 1981, in separate incidents, four respondents were suspected of drunk driving on California highways and pulled over by police, and to prove their guilt, their blood test was taken.
India : In Kunhiraman vs Manoj[9], Complainant Vilasini, unmarried women filed a case of maintenance against the defendant for her son, as she claimed that the defendant, Kunhiracoan was the biological father of her son and they had illegitimate sexual relations with each other, and during which she conceived his son and also denied having illicit relations with anyone else other than him, which he denied. This Court ordered the DNA of the Complainant, her Son and the Defendant, which came in favour of complainant.
In Smt. Kanti Devi vs Poshi Ram[10], the marriage between the couple was formally solemnized, in which the wife remained childless for 15 years, and then gave birth to a male child. However, the father denied paternity of the child. In this case, the Court held that “The result of a 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, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.”
Pakistan: In Pakistan, DNA testing in the civil cases pertaining to paternity/maternity has mostly been discouraged by the court. In these cases, the court tend to believe in the principle, “Child follows the Bed” and usually declined the requests for DNA to claim or reject paternity or maternity of a child. In Muhammad Arshad v. Sughran bibi[11], the court held, “The allegation by a husband or his act of rejecting child born out of marriage is to be verified through solid and reliable evidence. Legitimacy of child born out of legalised marriage always carried presupposition of truth in its favour and mere simple denial can never take away the child legitimacy status, in majority of cases, according to Muhammdan law “child follows the bed” is acknowledged to be an issue of his parents without acknowledgement or affirmation on the part of father, the child follows the bed (firash)”[12]
In Muhammad Nawaz v. Addl. District & Sessions Judge, etc.[13], the Court held that “A court order for the DNA test of two persons as a means of identifying their genetic relationships interferes with their right to privacy and liberty. This test can be ordered only either with the consent of the persons concerned or without their consent if permissible under a law. We are aware of certain provisions of criminal law5 which permit the DNA test of an accused person without his consent, but no civil law has been brought to our notice which allows this test in civil cases without the consent of the person concerned.”
In Khizar hayat v/s Additional and district judge kabirwala & 2 others[14](PLD 2010 LAH 422):- “As per article 128 of Qanoon-e-shadat 1984, the birth during marriage is conclusive proof of legitimacy” “DNA test is not to be ordered to be conducted as commonly in those type of cases in which the father refuses to acknowledge his offspring which born in result of lawful wedlock, for the reasons that otherwise the presumption under Article 117,118,119,128 of QSO that a child during continuation of legal wedlock and before completion of two years of marriage dissolution, provided that if lady stayed unmarried throughout this period, should be definite proof of legitimacy of child that man unless man denies the act, In this case the petitioner himself has admitted that he divorced respondent no.2 in the year1998 where as the respondent no.3 was born in the year1997. This fact by itself indicated that respondent no.3 was born during the subsistence of valid Nikah. Then under Art.128 QSO it could be safely presumed that respondent no.3 is the child of petitioner”
“it has been observed by this court that it has become a common practice that when a relation between parties becomes strained after marriage and even extreme hatred is developed between spouses and same is dissolved, the parties do not spare each other even to the extent that often father refuses to acknowledge the child for the reason either to avoid maintenance or to deprive child from inheritance of in case of his second marriage at the insistence of his second wife or pressure of elders of family and this trend is not only damaging but is also dangerous for the society and in such situation request for DNA is not proper
Conclusion: To conclude, it is suffice to say that, with the development and transformation in the field of medicine, the usage of DNA as evidence has become common in different countries of the world, Furthermore, it has been more frequently used in criminal cases, but in the present era, various jurisdictions have also started to use it in civil cases as well. However, in comparison to a few countries in the world, Pakistan is the only country where DNA has been used as evidence in criminal cases such as rape, murder, unnatural offences etc., but not in civil cases such as maternity or paternity issues.
[1] Riggs & Camm [2023] FedCamC2F 1266
[2] Farnell v Penhalluriack [2008] VSC 214
[3] S v Van Tonder (31/1990) [1991] ZASCA 18 (21 March 1991)
[4] Pillay v Krishna, 1946 AD 946 952-953
[5] Ghanaian boy (immigration case in the UK)
[6] Docherty v McGlynn 1983 SLT 645 1985 SC 89 and 1985 SLT 237
[7] Daubert v. Merrell Dow Pharmaceuticals Inc 727 F. Supp. 570
[8] California v. Trombetta, 467 U.S. 479 (1984)
[9] Kunhiraman vs Manoj, 27 February, 1991, cited as II (1991) DMC 499
[10] Smt. Kanti Devi vs Poshi Ram, Appeal (civil) 3860 of 2001
[11] PLD 2008 LAH 302.
[12] Ibid.
[13] Muhammad Nawaz v. Addl. District & Sessions Judge, etc, Supreme Court of Pakistan (Civil Petition No.2414-L of 2015).
[14] PLD 2010 LAH 422.
This work is submitted to PLR by:
Sara Saleem
Assistant Director
Legislation Branch
Senate of Pakistan
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Now You Know!
- The DNA Law in Pakistan primarily governs the collection, preservation, and analysis of DNA evidence in criminal investigations and legal proceedings.
- The Pakistan Penal Code (PPC) and the Code of Criminal Procedure (CrPC) provide legal frameworks for the admissibility and use of DNA evidence in courts.
- The DNA Identification Bill, passed in 2018, aims to establish a DNA database for criminal identification and enhance forensic capabilities in the country.
- The law mandates strict protocols for DNA sample collection, handling, storage, and analysis to ensure accuracy, reliability, and chain of custody.
- DNA evidence is increasingly utilized in criminal cases such as rape, murder, and paternity disputes to establish identity, link suspects to crime scenes, and exonerate innocent individuals.
- Pakistan has established forensic laboratories equipped with state-of-the-art technology for DNA testing and analysis.
- Legal jurisprudence surrounding DNA evidence in Pakistan emphasizes the need for adherence to international standards, human rights considerations, and protection of privacy.
- Courts rely on expert testimony from forensic scientists and DNA analysts to interpret and present DNA evidence accurately during trials.
- The use of DNA evidence has led to significant breakthroughs in criminal investigations, contributing to the administration of justice and the rule of law in Pakistan.
- Ongoing developments in DNA technology and legal jurisprudence necessitate continuous updates to legislation and protocols to ensure the effective and ethical utilization of DNA evidence in Pakistan’s criminal justice system.