The Supreme Court recently held that a DNA test cannot be ordered on a person when the paternity of the child involved is not a subject matter of dispute.
A Bench of Justices Prashant Kumar Mishra and Vipul M Pancholi said DNA profiling cannot be ordered as a matter of routine and that a mother’s willingness to take the test does not extend to compelling others to do so.
Thus, the Court set aside a Madras High Court direction to a doctor to undergo DNA testing in a cheating and harassment case filed against him by a woman who had accused him of fathering her child during the subsistence of her marriage with another man.
“Respondent No.1’s willingness to waive her own privacy does not extend to waiving the privacy of others. The appellant and the child, who has now attained majority, possess independent and equally inviolable rights to privacy and dignity,” the Court said.
The Bench observed that the High Court had erred in assuming that DNA testing was essential for investigating the allegations, even though the child’s paternity was legally settled under Section 112 of the Indian Evidence Act.
The case arose out of a complaint filed by a woman in Tamil Nadu who alleged that she was cheated and harassed by her doctor. The complainant, a married woman, had approached the appellant–doctor for treatment of her husband’s skin ailment. She later claimed that the doctor developed a physical relationship with her, which resulted in the birth of a child in 2007.
After her husband allegedly deserted her, the woman went public with her allegations on a television show, following which an FIR was registered against the doctor under Sections 417 and 420 of the Indian Penal Code and Section 4(1) of the Tamil Nadu Women Harassment Act.
During investigation, the police sought directions to send the doctor, the woman, and her child for DNA profiling. The Judicial Magistrate allowed the request but the doctor did not comply. The woman then filed petitions before the Madras High Court seeking transfer of the investigation and an order for DNA testing.
In 2017, the Madras High Court directed the doctor to appear before the Dean of Government Rajaji Hospital, Madurai, for collection of blood samples. The doctor challenged this direction before the Supreme Court.
Before the top court, the appellant argued that a DNA test could not be ordered when paternity was not the subject of the criminal case, and that such an order would violate his privacy and dignity. The complainant, on the other hand, claimed that the test was necessary to prove her allegations.
The Supreme Court examined Section 112 of the Indian Evidence Act, which creates a conclusive presumption of legitimacy for a child born during a valid marriage unless non-access between the spouses is proved. It held that the complainant had not pleaded or proved non-access and that her child was presumed to be legitimate.
The Bench further found that the High Court had misunderstood the scope of Sections 53 and 53A of the Code of Criminal Procedure, which allow medical examination of an accused only when it is directly related to the alleged offence.
“A direction for DNA testing must have a direct and demonstrable nexus with the offences under investigation. In the absence of such nexus, compelling a person to undergo DNA profiling amounts to unwarranted intrusion into bodily autonomy and privacy,” the judgment said.
The Court further said that forcing an individual to undergo DNA testing amounts to a grave invasion of privacy protected under Article 21 of the Constitution.
“Forcefully subjecting an individual to DNA testing constitutes a grave intrusion upon privacy and personal liberty. Such an encroachment can be justified only if it satisfies the threefold test of legality, legitimate State aim, and proportionality,” the Court said, quoting the nine-judge Bench decision in K.S. Puttaswamy v. Union of India.
It observed that the High Court had failed to consider that the child, now an adult, was not a party to the proceedings and that compelling her to undergo DNA testing could cause lasting harm.
“A direction for DNA testing without considering the ramifications causes risks inflicting an irreversible psychological and social harm,” the Bench noted.
Concluding that the High Court’s order was based on a fundamental misapprehension of both statutory framework and constitutional safeguards, the Supreme Court set aside the 2017 order and allowed the appeal.
“Scientific procedures, however advanced, cannot be employed as instruments of speculation; they must be anchored in demonstrable relevance to the charge and justified by compelling investigative need,” the Court said.
The appellant was represented by advocates Pulkit Tare, D Kumanan, Sheikh F Kalia and Suvendu Suvasis Dash.
The respondents were represented by Additional Advocate General Balaji Subramanian along with advocates Ankur Prakash, Sabarish Subramanian, Vishnu Unnikrishnan, Arpitha Anna Mathew, Veshal Tyagi, Jahnavi Taneja, KS Badhrinathan, Akash Kundu and Danish Saifi.
[Read Judgment]