DNA Evidence in Bangladesh: Scientific Reliability, Legal Significance and Judicial Approach. by Advocate Abdur Rob Parvez Robi

 DNA Evidence in Bangladesh:

Scientific Reliability, Legal Significance and Judicial Approach

Abdur Rob Parvez Robi

LLB(Hon’s), LLM(JnU), PGD(DU)
Advocate, Supreme Court of Bangladesh
Head of Legal, Glorious Legal Services Firm

 

1.0  Introduction

The advancement of science and technology has significantly transformed modern judicial systems across the world. Among the various scientific tools available to courts and investigators, DNA (Deoxyribonucleic Acid) testing has emerged as one of the most reliable methods for establishing identity, biological relationships, and criminal involvement. DNA evidence has become an indispensable component of modern forensic science and is frequently used in criminal investigations, paternity disputes, inheritance claims, rape prosecutions, homicide cases, and the identification of missing persons.

Despite its scientific reliability, DNA testing is not merely a laboratory procedure; it also raises important legal, constitutional, and human rights concerns. The question often arises whether a court may compel a person to undergo a DNA test at any stage of a legal proceeding. The answer, according to Bangladeshi jurisprudence, is not straightforward.

A landmark decision of the High Court Division of the Supreme Court of Bangladesh has established that DNA testing is not a routine judicial tool and may only be ordered when a valid legal foundation exists.

 

1.1  Understanding DNA

DNA, or Deoxyribonucleic Acid, is the hereditary material present in almost every cell of the human body. It contains the genetic instructions that determine an individual's biological characteristics and hereditary traits.

 

Each person possesses a unique DNA profile, except in the case of identical twins. This uniqueness makes DNA one of the most reliable means of identifying an individual and establishing biological relationships.

DNA consists primarily of chemical elements including carbon, hydrogen, oxygen, nitrogen, and phosphorus, organized into a complex molecular structure that carries genetic information from one generation to another.

 

1.2  What is DNA Testing?

DNA testing is a scientific process used to analyze genetic material collected from biological samples in order to identify individuals or determine biological relationships.

DNA samples may be obtained from:

• Blood
• Saliva
• Hair roots
• Semen
• Skin cells
• Bones
• Teeth

The process generally involves:

1. Collection of biological samples;
2. Extraction of DNA;
3. DNA profiling;
4. Comparative genetic analysis; and
5. Preparation of a forensic expert report.

The results are usually presented before a court through qualified forensic experts.

1.3  Types of DNA and Their Forensic Significance

DNA found in the human body can be classified into several categories based on its location and inheritance pattern. Understanding these different types of DNA is essential in forensic science, criminal investigations, paternity disputes, and judicial proceedings.

1.3.1 Nuclear DNA (nDNA)

Nuclear DNA is the most commonly used form of DNA in forensic investigations and legal proceedings. It is located within the nucleus of human cells and contains genetic information inherited equally from both biological parents. Because every individual, except identical twins, possesses a unique nuclear DNA profile, it serves as the primary source for personal identification, paternity testing, criminal investigations, and kinship analysis. Most DNA tests ordered by courts in Bangladesh and other jurisdictions are based on the examination of nuclear DNA.

1.3.2 Mitochondrial DNA (mtDNA)

Mitochondrial DNA is found outside the cell nucleus, within structures known as mitochondria. Unlike nuclear DNA, mitochondrial DNA is inherited exclusively from the mother. This type of DNA is particularly useful when nuclear DNA samples are degraded or unavailable. In forensic investigations involving old skeletal remains, hair shafts without roots, disaster victim identification, or missing persons cases, mitochondrial DNA analysis often plays a significant role. Although it is less specific than nuclear DNA, it remains a valuable forensic tool.

1.3.3 Y-Chromosome DNA (Y-DNA)

Y-Chromosome DNA is found only in males and is passed from father to son through the paternal lineage. This type of DNA is especially important in cases involving male identification, sexual assault investigations, and paternal ancestry analysis. Since males within the same paternal family often share similar Y-DNA characteristics, it can assist investigators in tracing paternal relationships and excluding unrelated individuals.

1.3.4 X-Chromosome DNA (X-DNA)

X-Chromosome DNA is inherited differently by males and females. Females inherit one X chromosome from each parent, while males inherit an X chromosome from their mother and a Y chromosome from their father. X-DNA analysis may be used in complex kinship disputes where traditional paternity testing is insufficient. Although less frequently used than nuclear or Y-chromosome DNA, it can provide valuable evidence in certain family relationship investigations.

1.3.5 Autosomal DNA

Autosomal DNA refers to the DNA contained within the twenty-two pairs of non-sex chromosomes. It represents the most comprehensive genetic information inherited from both parents and is widely used in modern forensic science. Autosomal DNA testing forms the basis of most contemporary paternity, maternity, sibling, and relationship testing procedures. It provides highly accurate results and is considered the gold standard in forensic DNA profiling.

1.4 Forensic Importance of Different Types of DNA

Each type of DNA serves a distinct purpose within the legal and forensic framework. Nuclear DNA remains the most reliable and widely accepted form of evidence for establishing identity and biological relationships. Mitochondrial DNA assists in identifying individuals when conventional samples are unavailable. Y-Chromosome DNA is valuable for tracing paternal lineage and investigating crimes involving male suspects. X-Chromosome DNA helps resolve complex kinship disputes, while Autosomal DNA provides the broadest and most accurate assessment of biological relationships.

In modern legal systems, including Bangladesh, DNA evidence has become a powerful scientific tool. However, regardless of the type of DNA involved, courts continue to emphasize that DNA testing must be conducted in accordance with due process of law, proper forensic procedures, and established judicial principles to ensure both scientific reliability and legal fairness.

 

2.0 Purposes of DNA Testing 

DNA testing serves numerous legal and investigative purposes.

2.1 Paternity and Maternity Determination

DNA testing is frequently used to determine biological parentage when paternity or maternity is disputed.

2.2 Criminal Investigation

In cases involving rape, murder, kidnapping, and other serious offences, DNA evidence may connect a suspect to a crime scene or exclude innocent individuals.

2.3 Identification of Unknown Persons

DNA profiling is often used to identify unidentified bodies, disaster victims, and missing persons.

2.4 Inheritance and Succession Disputes

DNA evidence may assist courts in determining biological relationships relevant to inheritance rights.

2.5 Exoneration of Innocent Persons

DNA evidence has become a powerful tool for preventing wrongful convictions and ensuring justice.

 

3.0 Legal Significance of DNA Evidence

DNA evidence is widely regarded as one of the strongest forms of scientific evidence due to its high degree of accuracy and reliability.

However, DNA evidence is not conclusive in isolation. Courts must evaluate it alongside documentary evidence, witness testimony, surrounding circumstances, and applicable legal principles.

The judicial objective is not merely to rely on scientific findings but to ensure that such findings are legally admissible, relevant, and obtained through a lawful process.

3.1 DNA Evidence and Constitutional Rights

DNA testing involves the collection and examination of an individual's biological material. Consequently, it affects important constitutional rights relating to privacy, dignity, bodily integrity, and personal liberty.

In Bangladesh, constitutional protections under Articles 31 and 32 require courts to exercise caution before compelling an individual to undergo DNA testing.

The courts therefore seek to balance two competing interests:

1. The pursuit of truth and justice; and
2. The protection of individual rights and liberties.

3.2 DNA Testing in Family and Civil Litigation

DNA testing frequently arises in family disputes involving:

• Paternity claims;
• Legitimacy of children;
• Maintenance proceedings;
• Inheritance disputes; and
• Marital status controversies.

Nevertheless, Bangladeshi courts have consistently emphasized that DNA testing should not become a substitute for primary evidence.

Before ordering a DNA test, a court must examine whether the applicant has established a prima facie case and whether sufficient legal grounds exist to justify such an intrusive measure.

4.0 Landmark Decision:

The High Court referred to the decision regarding DNA Test:

Md. Shakhawat Hossain vs. Afroza Sanu

24 BLT (HCD) 150

Civil Revision No. 1115 of 2015

Date of Judgment: 26 November 2015

Judge: Justice Sharif Uddin Chaklader

4.1 Facts of the Case

The petitioner, Md. Shakhawat Hossain, denied ever having contracted a valid marriage with the respondent, Afroza Sanu.

The respondent, however, claimed that:

• She divorced her previous husband in 2008;
• She married the petitioner on 9 February 2009;
• A dower amount of Tk. 500,000 was fixed but remained unpaid;
• A daughter was born from the relationship; and
• The petitioner had failed to maintain her and the child since 2012.

During the proceedings before the Family Court, the respondent applied for a DNA test to establish the paternity of the child.

The Family Court granted the application on the very day it was filed, reportedly without providing the petitioner an adequate opportunity to object.

After the appellate court affirmed the order, the petitioner approached the High Court Division through a civil revision petition.

4.2 Issues Before the High Court

The High Court considered two fundamental questions:

1. Whether a valid legal foundation existed for ordering a DNA test; and
2. Whether mere cohabitation could establish a valid Muslim marriage.

4.3 Observations of the High Court

The Court strongly criticized the manner in which the Family Court had issued the DNA testing order.

The Court observed that there was no sufficient evidence of a valid marriage, such as:

• Marriage registration;
• Kabinnama;
• Reliable witnesses; or
• Other supporting documentary evidence.

The Court emphasized that judicial orders affecting fundamental rights cannot be issued casually or mechanically.

4.4 Principle Established by the Court

The High Court laid down the following important legal principle:

“Unless there be valid foundation for D.N.A. test, no one can compel to go for D.N.A. test.”

This statement has become one of the leading judicial authorities concerning DNA testing in Bangladesh.

The Court held that DNA testing is not a routine procedural device. Rather, it is an extraordinary judicial measure that may only be invoked where sufficient legal and factual grounds exist.

5.0 Marriage Under Muslim Law and DNA Claims

The Court further discussed the legal requirements of a valid Muslim marriage.

According to Muslim personal law, a valid marriage generally requires:

• Proposal and acceptance (Ijab and Qabul);
• Competent witnesses;
• Dower (Mahr);
• Compliance with legal formalities.

The Court observed that mere cohabitation or living together does not automatically establish a valid marriage.

Consequently, where the existence of marriage itself remains unproven, courts should exercise extreme caution before directing DNA testing solely to establish paternity claims.

5.1 Relevant Judicial Precedent

The High Court referred to the decision in:

Khorshed Alam vs. Amir Sultan Hyder

38 DLR (AD) 133

The Appellate Division in that case discussed the legal consequences of marriage, legitimacy, and inheritance under Muslim law. The principles derived from that decision influenced the Court's reasoning in the Shakhawat Hossain case.

5.2 When Can a Court Order DNA Testing?

Based on judicial principles developed in Bangladesh, a DNA test may be considered where:

• A strong prima facie case exists;
• The issue cannot reasonably be resolved through ordinary evidence;
• The interests of justice require scientific verification;
• The request is made in good faith;
• The court records sufficient reasons supporting the order.

Conversely, DNA testing should not be ordered merely because one party requests it or because allegations are made without supporting evidence.

 

6.0 Is DNA test Legal in Bangladesh?

DNA testing is legal and judicially recognized in Bangladesh. Courts may admit DNA evidence in criminal, family, and civil cases, including paternity disputes, rape cases, murder investigations, inheritance claims, and identification of missing persons.

However, DNA testing is not a routine procedure. A court cannot compel a person to undergo a DNA test merely on the basis of allegations or suspicion. The applicant must establish a valid legal foundation and a strong prima facie case before such an order can be granted.

In the landmark case Md. Shakhawat Hossain v. Afroza Sanu (24 BLT (HCD) 150), the High Court Division held:

“Unless there be valid foundation for D.N.A. test, no one can compel to go for D.N.A. test.”

Therefore, while DNA testing is a legally accepted and scientifically reliable form of evidence in Bangladesh, its use remains subject to judicial scrutiny, due process of law, and constitutional protections under Articles 31 and 32 of the Constitution of Bangladesh.

6.1 Legal framework of The Deoxyribonucleic Acid (DNA) Act, 2014

 The Deoxyribonucleic Acid (DNA) Act, 2014 (Act No. X of 2014) is the primary legislation governing DNA testing and DNA evidence in Bangladesh. The Act was enacted to regulate the collection, preservation, analysis, and use of DNA samples for criminal investigations, paternity determination, identification of missing persons, and other legal purposes.

The Act authorizes the establishment of forensic DNA laboratories and a National DNA Database, while also ensuring the confidentiality and security of genetic information. It provides legal recognition to DNA evidence and prescribes penalties for the unauthorized collection, disclosure, misuse, or destruction of DNA-related information.

Although DNA testing is legally recognized under the Act, courts may order DNA testing only in accordance with due process of law and judicial principles. DNA testing cannot be directed arbitrarily and must be supported by a valid legal foundation.

 

6.2 DNA Test and DNA Report

Genetic testing, also known as DNA testing, involves obtaining DNA from a sample of cells in your body to identify specific genes, chromosomes, or proteins, including those that are faulty (known as mutations).

Testing can help identify genetic lineage, confirm or rule out an inherited genetic disorder, assess your risk of developing or passing on a genetic disorder, and select which drugs may be most effective based on your genetic profile. The tests can be performed on blood, urine, saliva, body tissues, bone, or hair. 

The DNA report you will receive shows numbers in the first column that signify each of the 21 loci GTL have used in the DNA testing process.

The columns marked ‘Alleles Called’ on the DNA test report contain numbers indicating the two alleles found at each locus. If the alleles are the same size then only one number will appear for that locus.

For example: If a tested child has two alleles at a locus that are identified as 12.1 and 18 and the mother has alleles at the same locus identified as 12.1 and 16 then the child inherited the 12.1 allele from the mother. The child therefore has to have inherited the 18 allele from the father. These 18 alleles are referred to as the ‘obligate paternal allele’. Generally, if he is the true biological father of the child, the alleged father must have this allele.

7.0 Conclusion

DNA evidence has revolutionized modern litigation by providing courts with a highly reliable scientific method for determining identity and biological relationships. It has become an invaluable tool in criminal investigations, family disputes, inheritance claims, and forensic identification.

However, the legal system must ensure that scientific certainty does not override constitutional protections and procedural fairness. The landmark judgment in Md. Shakhawat Hossain vs. Afroza Sanu established a crucial principle within Bangladeshi jurisprudence: DNA testing is not a routine remedy and cannot be ordered in the absence of a valid legal foundation.

The decision represents an important balance between scientific advancement and the protection of fundamental rights. It serves as a guiding precedent for courts, lawyers, and litigants dealing with issues involving DNA evidence in Bangladesh and reinforces the principle that justice must always be pursued through lawful and reasoned judicial processes.

 

References

Cases

1. Md. Shakhawat Hossain v. Afroza Sanu, 24 BLT (HCD) 150, Civil Revision No. 1115 of 2015 (Judgment dated 26 November 2015).
2. Khorshed Alam v. Amir Sultan Hyder and Others, 38 DLR (AD) 133.

 

Statutes and Legislative Instruments

3. The Constitution of the People's Republic of Bangladesh, particularly Articles 31 and 32.
4. The Evidence Act, 1872.
5. The Code of Criminal Procedure, 1898.
6. The Family Courts Act, 2023.
7. The Nari O Shishu Nirjatan Daman Ain, 2000.
8. The Muslim Family Laws Ordinance, 1961.
9. The Muslim Marriages and Divorces (Registration) Act, 1974.
10. The Deoxyribonucleic Acid (DNA) Act, 2014 (Act No. X of 2014), Ministry of Women and Children Affairs, Government of the People's Republic of Bangladesh.

 

Books and Treatises

11.  Mulla, Dinshaw Fardunji, Principles of Mohammedan Law, LexisNexis, Latest Edition.

12. Rahman, Dr. M. Habibur, Muslim Law in Bangladesh: Theory and Practice, University Press Limited (UPL).
13. Sarkar, Sudipto, Law of Evidence, LexisNexis Butterworths.
14. Parikh, C.K., Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, CBS Publishers.
15. Saferstein, Richard, Criminalistics: An Introduction to Forensic Science, Pearson Education.

Journal Articles and Research Materials

16.  Butler, John M., “Forensic DNA Typing and Its Impact on Criminal Justice,” Nature Reviews Genetics.

17. National Institute of Justice (NIJ), United States Department of Justice, Using DNA to Solve Crimes.
18. United Nations Office on Drugs and Crime (UNODC), Guidelines on Forensic Evidence and DNA Analysis.
19. International Society for Forensic Genetics (ISFG), Recommendations on DNA Profiling and Interpretation.
20. A. Z. M. Arman Habib, Deoxyribonucleic Acid (DNA) Act, 2014: A New Era in Criminal Justice System of Bangladesh, Bangladesh Law Digest (2016).

21.  Mohammad Shishir Manir, The Deoxyribonucleic Acid (DNA) Act, 2014, Law Review.

Online and Institutional Resources

22.  Bangladesh Supreme Court Law Reports (BLT and DLR Series).

23. Bangladesh National Forensic DNA Profiling Laboratory.
24. United Nations Office on Drugs and Crime (UNODC) Forensic Science Publications.
25. Interpol Forensic Science and DNA Identification Guidelines.
26. World Health Organization (WHO) – Genetics and Human Identification Resources.

 

 

Thankfully-

 

Abdur Rob Parvez Robi

LLB(Hon’s), LLM(JnU), PGD(DU)
Advocate, Supreme Court of Bangladesh
Head of Legal, Glorious Legal Services Firm