SC declines two children’s DNA testing for determining paternity in a matrimonial dispute

The Supreme Court has repealed the order of the Telangana High Court allowing DNA testing to determine the paternity of two children in a matrimonial dispute by stating that it would violate the right to privacy of the persons subjected to such test.

Aniruddha Bose and Vikram Nath, on behalf of the court, wrote in their order that something cannot simply be instructed because it is legal because doing so would be “intrusive to the physical autonomy of a person.”Merely because something is permissible under the law cannot be directed as a matter, of course, to be performed particularly when a direction to that effect would be invasive to the physical autonomy of a person. The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion but encompasses the right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the trial court’s direction,” the top court said while setting aside the Telangana High Court’s verdict.

A DNA test had been ordered by the High Court on February 20, 2017, on the claim made by the mother of these children that she had been “forced to cohabit and develop a physical relationship” with her brother-in-law.

The dowry harassment and physical abuse case for which the plaintiff filed an FIR against her husband and his brother gave rise to the appeal in the top court.
She claimed that she was compelled to live with her brother-in-law and have a physical relationship with him and that the two children were the result of that relationship. She filed an application under Section 45 of the Indian Evidence Act with the appeal for guidance on how to obtain an expert opinion for the DNA fingerprint test comparing blood samples of two minor daughters of her husband with his brother.

The trial court had accepted her plea, and she was ordered to provide blood samples to the designated hospital along with her estranged husband, his brother, and their children in order to have an expert opinion on a DNA fingerprint test.
The trial court’s order from October 17, 2014, was afterward contested by both men before the High Court. However, the High Court rejected their argument, concluding that Sections 53, 53A, and 54 of the Criminal Procedure Code allowed for such a DNA fingerprint test (CrPC).
The top court concluded that the trial court had “mechanically” accepted the complainant’s application on the presumption that the DNA fingerprint test is legal while also accepting the appeal brought by the accused.

“The judgment under appeal, blood sampling of the children was directed, who were not parties to the proceeding nor were their status required to be examined in the complaint of the respondent no.2. This raised doubt on their legitimacy of being borne to legally wedded parents and such directions if carried out, have the potential of exposing them to inheritance related complication,” the bench stated in its order.
In our opinion, the trial court as well as the High Court had completely ignored the said factor and “proceeded as if the children were material objects who could be sent for forensic analysis”, the apex court stated.
It further added that the other factors ignored by the two Courts were that the “paternity of the children was not in question in the subject-proceeding”.

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