Report No. 185
We have elaborately referred to DNA tests in our discussion under Section 9. We have pointed out that according to the developments in science today, DNA tests can result in proving definitely that a person is not the father, where the samples do not match. But where the samples match, the controversy remain.- and volumes have been written about statistical probabilities and their relevance. It is now settled that where samples match, the probability about the identity of the person depends on the probability of there being similar matches in the male population of the country about whom DNA records are available.
If the DNA data is less and does not cover the whole population of a country, the matching is weak evidence. Where the DNA data is available for a larger population or for the whole country, naturally, the probability will be far less than in a smaller population. Even so, several countries have permitted DNA evidence even if the samples match, they permit expert evidence so that the Court or jury may take them into account. In England, in the cases referred to in Section 9, the Bays theorem theory of adding up probabilities, has not been accepted.
Therefore, as in the case of blood-group tests, science has progressed to this extent that where the samples of the male and the child do not match, it is certain that the male is not the father. But, where they match, it leads us to a theory of probability. We propose that as in the case of blood tests, there can be evidence by way of DNA tests to prove that a person is not the father. But DNA evidence cannot be used to say that a person is the father.
Further, as laid down by the National Association of Testing Authorities Australia (NATA), non-paternity can be declared only if there were at least two tests inconsistent with paternity. See B. Atchison & N. Red,am (2000) 32. Aust LJ of Forensic Sciences 75. (quoted by Australian Law Reform Commission at p. 18 (fn. 66). We would extend this requirement applied to DNA, to the other two tests viz., medical tests to prove impotency and blood tests to prove non-parentage.
A person refusing to consent to medical tests for proving his plea of impotency or refusing to allow blood tests or DNA tests, will be compelled to waive his defence that he is not the father.
For medical tests to prove impotency, or for blood tests and DNA tests to prove a person is not the father, we propose to use the word 'conclusively proved'. This is intended to eliminate erroneous procedures being used in the medical, blood or DNA tests being relied upon. The Court must be satisfied that the procedures for the tests have been properly followed according to accepted scientific standards.
In the light of the above discussion, we propose to add three more exceptions, (i) medical tests to prove impotency, (ii) blood tests, (iii) DNA test. The proposed section 112 is as follows:
"112. Birth during marriage conclusive proof of legitimacy except in certain cases.- The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days,
(i) after the marriage was declared nullity, the mother remaining unmarried, or
(ii) after the marriage was avoided by dissolution, the mother remaining unmarried, shall be conclusive proof that such person is the legitimate child of that man, unless
(a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or
(b) it is conclusively established, by tests conducted at the expense of that man, namely,
(i) medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or
(ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the Court, that that man is not the father of the child; or
(iii) DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the Court, that that man is not the father of the child;
Provided that the Court is satisfied that the test under subclause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to accepted procedures, and in the case of each of these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that that man is not the father of the child.
Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him.
Explanation I.- For the purpose of sub clause (iii) of clause (b), the words 'DNA genetic printing tests' shall mean the tests conducted by way of samples rela to the husband and child and the words "DNA" mean 'Deoxyribo-Nucleic Acid'.
Explanation II.- For the purposes of this section, the words 'valid marriage' shall mean a void marriage till it is declared nullity or a voidable marriage till it is avoided by dissolution, where, by any enactment for the time being in force, it is provided that the children of such marriages which are declared nullity or avoided by dissolution, shall nevertheless be legitimate."
We recommend Section 112 as above drafted be substituted.