'Biological Identity' Of Children Must Be Ascertained: Calcutta High Court Orders DNA Tests In Alleged Baby-Swap Case

The Calcutta High Court has directed repeat DNA testing of two young children after a woman alleged that her newborn daughter was swapped with another baby at a Durgapur hospital, observing that the case involved not merely a criminal investigation but the children's right to know their biological identity.

Justice Kausik Chanda, in an order passed on October 5, directed the petitioner, her husband and the child presently in their custody to undergo a fresh DNA examination, while also directing DNA testing of the child presently in the custody of the opposite parties.

The Court, however, stopped short of compelling the other couple, who were not accused in the case, to undergo DNA testing. It held that they could voluntarily undergo the examination, having regard to considerations of privacy and bodily autonomy.

The Court was hearing a criminal revision petition filed by Nargish Bano challenging an August 11, 2025 order of the Additional Chief Judicial Magistrate, Durgapur, which had rejected the investigating agency's prayer for DNA profiling of the opposite parties and the child in their custody.

The criminal case arose from the petitioner's allegation that newborn babies had been exchanged at Health World City Centre, Durgapur. According to her complaint, she had delivered a girl child on July 10, 2023. Two days later, she noticed that the identification tag attached to the child bore the name “B/O Baishakhi Guin”, referring to Opposite Party No. 2, who had also delivered a girl child at the hospital.

The petitioner alleged that although the nurse changed the tag after being informed, there was also a discrepancy in the blood-group entries relating to the child. She consequently suspected that the two babies had been exchanged.

An FIR was registered at Durgapur Police Station on August 22, 2023 under Sections 417, 420, 406, 506, 120B and 34 of the IPC.

The investigating agency had earlier sought DNA testing of the petitioner, her husband and the child in their custody. After the Magistrate rejected the prayer, the petitioner approached the High Court. A coordinate Bench subsequently directed DNA testing of the petitioner, her husband and the child.

The DNA report dated March 7, 2025 did not establish the petitioner and her husband as the biological parents of the child presently in their custody.

The petitioner therefore argued that comparative DNA profiling was necessary to determine which child belonged to which parents. It was submitted that DNA testing was the only scientifically precise means of establishing the biological identity of the children.

The opposite parties, who were not named as accused in the FIR, opposed the plea on grounds of privacy, bodily autonomy and the emotional welfare of the child. They submitted that hospital records, identification marks and medical documentation could be examined instead and argued that compelling DNA testing after more than two years could have serious psychological consequences.

The High Court held that the issue could not be treated as an ordinary paternity or legitimacy dispute.

“The issue involved in the present case is more humane and sensitive than criminal in nature, as it concerns the biological identity and welfare of two young children,” the Court observed.

The Court considered the scope of the Criminal Procedure (Identification) Act, 2022, particularly Sections 3 and 5. It held that the DNA examination could not be rejected merely because the concerned persons had not consented.

“Consent, by itself, cannot be regarded as an absolute condition precedent to the exercise of jurisdiction under Section 5,” the Court held, noting that Section 6 of the Act itself contemplated consequences for resistance or refusal to comply with a valid direction.

At the same time, the Court cautioned that the Magistrate's power under Section 5 was not to be exercised mechanically. The Magistrate had to independently satisfy himself that obtaining the biological sample was expedient in the facts of the case.

The Court noted that there was already a scientific finding excluding the petitioner and her husband as the biological parents of the child in their custody, while the allegation specifically concerned an exchange of the two newborns.

“If the children were, in fact, exchanged at birth, allowing the uncertainty to continue indefinitely may result in two children continuing to grow up with families who are not their biological families, while the truth remains capable of being scientifically established,” the Court observed.

The Court further noted that the interest of a child in knowing his or her true biological identity was a relevant consideration, while recognising the privacy and emotional interests of the children.

It referred to the Supreme Court's decision in Chaturbhuj Pradhan v. Amar Pradhan, observing that the competing interests of privacy and the child's legitimate interest in knowing biological identity had to be balanced on the facts of each case.

The Court was also conscious that the children were approximately three years and one month old and had developed strong psychological and emotional bonds with the families who had raised them.

It therefore clarified that even if the DNA examination established that the children had been exchanged, such finding would not automatically result in transfer of custody.

“DNA examination, therefore, should not be regarded as the end of the child-welfare inquiry,” the Court said, adding that the result would, at best, establish a biological fact which might require further consideration of the children's welfare, identity and future care.

The Court directed that the petitioner, her husband and the child in their custody undergo repeat DNA examination at the State Forensic Science Laboratory, Government of West Bengal. The child in the custody of Opposite Party Nos. 2 and 3 was also directed to undergo DNA testing.

Opposite Party Nos. 2 and 3 were given the liberty to undergo the test at the same laboratory, but the investigating agency was restrained from compelling them to do so as they were not accused in the case.

The Court directed that the examination be strictly confined to determining the biological relationship between the children and the concerned adults. It further directed that, as far as practicable, samples from both children be collected at their respective residences.

The State Forensic Science Laboratory was directed to complete the examinations within ten days of communication of the order, following applicable scientific and forensic protocols.

The matter has been listed on October 15 under the heading “To Be Mentioned”.

The Court expressly clarified that its order did not direct transfer or exchange of custody of either child merely on the basis of the DNA result.

Case: Nargish Bano @ Nargis Bano - vs- The State of West Bengal & Ors.