Calcutta High Court Orders Repeat DNA Testing in Durgapur Hospital Baby-Swap Case: 'Children Have a Right to Know Biological Identity'

A police complaint was registered, and preliminary investigative steps were undertaken; however, serious procedural ambiguities, conflicting hospital documentation, and doubts regarding earlier sample handling left the biological parentage unresolved. The petitioner and her husband continued raising the child handed over to them, while the other infant remained in the care of Opposite Party Nos. 2 and 3. Seeking an authoritative, forensically sound determination of parentage, Nargish Bano approached the High Court at Calcutta by filing a Criminal Revision Petition (CRR No. 779 of 2026), praying for mandatory repeat DNA testing under judicial supervision.

Legal Topic

Constitutional Jurisprudence & Family Forensic Law – Article 21 of the Constitution of India (Right to Biological Identity and Personal Dignity); Forensic DNA Examination in Alleged Hospital Baby Swapping; Interplay Between Criminal Investigation and Child Welfare; Section 53A of the Code of Criminal Procedure, 1973 / Bharatiya Sakshya Adhiniyam, 2023; Best Interests of the Child Principle; Preservation of Child Psychology During Forensic Sample Collection.

Core Legal Issue

Whether the High Court, exercising its supervisory and criminal revisional jurisdiction under Article 226/227 and Section 401 CrPC, can mandate repeat DNA testing of young children and parents in an alleged hospital baby-swap case to safeguard the children's fundamental right to know their biological identity, and whether such biological determination can automatically trigger an exchange of custody.

What Did the Court / Authority Decide?

The High Court at Calcutta, through a Single Judge Bench comprising Justice Kausik Chanda, passed a detailed directions order in CRR No. 779 of 2026, ordering comprehensive repeat DNA testing of both children and the concerned families at the State Forensic Science Laboratory (SFSL), Government of West Bengal.

Justice Kausik Chanda held that the case transcended an ordinary adversarial criminal investigation and directly engaged the children's fundamental right under Article 21 to discover their true biological roots and identity. The Court directed Nargish Bano, her husband, and the child presently in their custody to undergo repeat DNA testing at SFSL. Similarly, the child in the custody of Opposite Party Nos. 2 and 3 was directed to undergo testing. Recognizing that Opposite Party Nos. 2 and 3 were innocent parents and not accused persons, the Court granted them the liberty to undergo DNA testing voluntarily while strictly restraining the police from coercing them. To shield the young children from psychological trauma, the Bench mandated that biological samples be collected at their respective residences rather than police stations or clinical morgues, with the SFSL ordered to submit its report within ten days. Crucially, Justice Chanda added a compassionate rider: "Nothing contained in this order shall be construed as a direction for transfer or exchange of custody of either of the children on the basis of the DNA result alone," preserving custody adjudication for separate evaluation based strictly on the best interests of the children.

Key Legal Points

• Right to Know Biological Identity Grounded in Article 21: Justice Kausik Chanda held that every child possesses a constitutionally protected right to ascertain their true biological parentage, and judicial machinery must facilitate scientific discovery of truth rather than leaving families in lifelong genetic limbo.
• Custody Exchange Not Automatic Upon DNA Confirmation: The High Court explicitly decoupled biological parenthood from immediate physical custody, ruling that custody will not be transferred automatically upon receiving the DNA report, but will require independent judicial assessment of the children's psychological attachment and emotional welfare.
• Child-Centric Forensic Protocols: To minimize anxiety and trauma, the Court directed forensic officials to collect biological samples from both children directly at their homes, rather than subjecting them to intimidating hospital or police environments.
• No Coercion Against Non-Accused Parents: The Court safeguarded the fundamental privacy rights of Opposite Party Nos. 2 and 3 by granting them liberty to undergo DNA testing while prohibiting the investigating agency from using coercive force against them.
• Strict Ten-Day Forensic Deadline: The High Court directed the Director of the State Forensic Science Laboratory, Government of West Bengal, to complete the DNA profiling within a strict deadline of ten days, listing the case on October 15, 2026 for progress appraisal.

Relevant Law

• Article 21, Constitution of India: Guarantees the fundamental right to life, dignity, personal identity, and the paramount right of a child to know their biological lineage.
• Section 53A & Section 102, Code of Criminal Procedure, 1973 (CrPC) / Section 356, Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Governs medical examination and scientific evidence collection in criminal investigations.
• Section 112, Indian Evidence Act, 1872 / Section 116, Bharatiya Sakshya Adhiniyam, 2023 (BSA): Governs legal presumptions of legitimacy, where scientific DNA evidence is recognized as conclusive proof of biological parentage.
• United Nations Convention on the Rights of the Child (UNCRC), Articles 7 & 8: Recognizes the right of the child from birth to a name, to acquire a nationality, and as far as possible, to know and be cared for by their biological parents.

Arguments of the Parties

• Contentions of the Petitioner (Nargish Bano):
  • Represented by Advocates Satadru Lahiri and Safdar Azam, the petitioner submitted that persistent discrepancies in hospital delivery registers and nursing notes indicated that her biological daughter was switched with another child delivered on the same day at the Durgapur hospital.
  • Counsel argued that previous investigative steps failed to provide scientific clarity and that leaving the question of biological parentage unresolved would permanently violate the fundamental rights and emotional well-being of both children.
  • The petitioner urged the Court to order definitive forensic DNA testing under judicial monitoring to resolve the controversy conclusively.
• Stand of the State of West Bengal & Opposite Parties:
  • The State, represented by Government Counsel, submitted that the police had registered an FIR and were attempting to ascertain the truth, but required binding judicial directions to obtain DNA samples from both families without infringing on privacy rights.
  • Counsel for Opposite Party Nos. 2 and 3 expressed deep anxiety regarding the emotional stability of their family and the child in their custody, submitting that they were completely innocent victims who should not be treated as criminal suspects or subjected to coercive police measures.

Why Does It Matter?

Cases of suspected baby swapping in public and private hospitals represent some of the most heart-wrenching, emotionally catastrophic disputes in civil society. When medical negligence or human error leads to mismatched newborn infants, criminal procedures often stumble between the necessity of scientific evidence and the grave danger of inflicting trauma on tender children and innocent parents.

Justice Kausik Chanda’s judgment provides a compassionate and constitutionally advanced template for resolving such crises across India. By prioritizing the children's fundamental right to biological truth while strictly forbidding any abrupt, traumatic transfer of custody based purely on genetic results, the Calcutta High Court harmonizes forensic science with human psychology. Collecting samples at home and insulating non-accused parents from police harassment ensures that the search for truth does not become an instrument of cruelty.

Legal Takeaway

In cases of alleged hospital baby swapping, courts possess the power under Article 21 to order forensic DNA profiling to ascertain the biological identity of children. However, genetic paternity or maternity cannot automatically dictate custody: the psychological attachment, emotional stability, and paramount welfare of the children must govern custody decisions separately from biological findings.

Sources (Primary & Additional)

• Primary Judicial Order: High Court at Calcutta (Appellate Side), Nargish Bano @ Nargis Bano v. The State of West Bengal & Ors. (CRR No. 779 of 2026, Decided on October 05, 2026), per Justice Kausik Chanda. Calcutta High Court Order PDF Repository / LiveLaw PDF Upload.
• Authoritative Legal Reporting (LiveLaw): Srinjoy Das, \"'Biological Identity' Of Children Must Be Ascertained: Calcutta High Court Orders DNA Tests In Alleged Baby-Swap Case\" (Article ID: 553286, Published on October 06, 2026). LiveLaw Article.
• High Court Proceedings Dashboard: Calcutta High Court Cause List & Order Tracking System (CRR No. 779 of 2026, Listed for October 15, 2026). Calcutta High Court Official Portal.