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DNA profiling in forensic casework is based on comparison of the results of biological evidence with direct reference samples of the individual concerned or with indirect references of his close blood relatives. The selection of reference samples for analysis is crucial to the success of a case; it not only depends on the authenticity of the reference samples, but also on the authenticity of the biological relation of the donors with the person in question. There are situations when the social or legal relationship is not the biological one and there is a need to educate investigating officers, forensic analysts, and the judiciary about the associated problems.
The majority of the forensic cases analyzed by DNA testing involve establishment of paternity/maternity of the child or reverse parentage (for identity of the deceased). The analysis is based on comparison of the results of biological evidence with reference samples (blood or oral swab).
Indian courts have given more importance to social parentage than the biological one. Echoing the maxim Pater est quem nuptiae demonstrant (the father is he whom the nuptials indicate), Section 112 of the Indian Evidence Act, 1872, is based on the rule that the child born in wedlock should be treated as the child of the man who was then the husband of his mother. The only exception is when the husband proves that he had no access to his wife at the time of conception of that child. The legislative concern is against illegitimatizing a child as he should not suffer social disability because of the lapses of parents. The Supreme Court emphasized that Section 112 of the Evidence Act was enacted when DNA tests were not even in contemplation of the legislature. 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 reveals that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may seem to be hard on 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 favor of the innocent child from being bastardized, if his mother and her spouse was living together during the time of conception.
DNA profiling is the most` effective tool for justice in criminal and civil cases. The above-mentioned exceptional situations are rare, but it is important that investigating officers, forensic analysts, and members of the judiciary be aware of the necessity of obtaining authentic biological (genetic) samples and of the problems that may be encountered.
This article has been written keeping in view of all these issues. An attempt has also been made by providing some suggestions with the related issues.