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IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR.JUSTICE K. BABU
Suo Motu – Appellant
Versus
The State Of Kerala And 4 Others – Respondent
CRL.MC NO. 5136 OF 2023
Decided on : 19-04-2024
DNA TEST - Adoption and Privacy Rights - Juvenile Justice (Care and Protection of Children) Act, 2015, Regulation 48; Indian Penal Code, Section 375; Protection of Children from Sexual Offences Act, 2012 - The court emphasized the paramount importance of maintaining the confidentiality of adoption records as per Regulation 48 of the Adoption Regulations, 2022, and the provisions of the Juvenile Justice Act. It interpreted the right to privacy as a fundamental right, asserting that DNA tests on adopted children could adversely affect their emotional well-being and violate their privacy. The court concluded that the prosecution's need for DNA evidence must be balanced against the child's right to privacy, and such tests should not be ordered routinely, especially in cases involving adopted children.
Fact of the Case:
The case arose from conflicting court orders in Kerala regarding the collection of DNA samples from children born to rape victims who were subsequently adopted. The Project Co-ordinator of the Victims Rights Centre reported that these orders conflicted with the confidentiality provisions of the Juvenile Justice Act, which protects the privacy of adopted children.
Finding of the Court:
The court found that the collection of DNA samples from adopted children could have detrimental effects on their emotional status and violate their privacy rights. It held that the prosecution's need for DNA evidence must be carefully weighed against the child's right to privacy and the sanctity of adoption.
Issues: The primary issue was whether the orders for DNA collection from adopted children were legally justified and whether they infringed upon the privacy rights of the children and their families.
Ratio Decidendi: The court applied the principle of 'eminent need' and the doctrine of proportionality, concluding that DNA tests should not be ordered as a matter of course. It emphasized that the right to privacy is a fundamental right and that the necessity of such tests must be critically assessed in light of the potential harm to the child.
Final Decision: The court quashed the orders from various lower courts that directed the collection of DNA samples from adopted children, establishing that such actions are not sustainable under the law.
ORDER :
THE HONOURABLE MR.JUSTICE K. BABU
This Criminal Miscellaneous Case has been registered suo motu based on the report of the Project Co-ordinator, Victims Rights Centre, the Kerala State Legal Services Authority.
2. The report of the Project Co-ordinator points to the glaring conflicts of law relating to a sensitive and vulnerable issue touching the privacy of the children given in adoption. The various Courts in Kerala issued orders on the applications preferred by the prosecution to collect DNA of children born to rape victims. The report of the Project Co-ordinator indicates that such orders conflict with Regulation 48 of the Adoption Regulations, 2022 issued in exercise of the powers conferred under Clause (c) of Section 68 read with Clause (3) of Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the J.J Act') which deals with the confidentiality of records to be maintained in the case of adopted children by all agencies and authorities involved.
3. The issue involved is the legality and the adverse impact on the adopted children and the respective families following the issuance of orders by the competent Courts to collect DNA of children born to rape victims and given in adoption on the applications preferred by the prosecution to strengthen the case of rape.
4. This Court appointed Smt.Parvathi Menon.A as Amicus Curiae. The learned Amicus Curiae submitted that the principle of “eminent need” propounded by the Supreme Court in various decisions is to be applied to the cases in which the prosecution seeks permission to collect DNA samples of children born to rape victims, especially in the case of children given in adoption. The learned Amicus Curiae submitted that the collection of DNA samples may have an adverse impact on the person and it is an encroachment upon privacy and personal autonomy.
5. The learned Amicus Curiae added that the exercise of collecting DNA samples is done to strengthen the prosecution case of rape which can be successfully proved by positive evidence that the accused had sexual intercourse with the lady without her consent or against her will and the proof of paternity would not help the Court in deciding the issue whether the accused committed rape on her. The learned Amicus Curiae relied on the following precedents to substantiate her contentions:
(ii) Ashok Kumar v. Raj Gupta [(2022) 1 SCC 20]. (iii) K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1].
(iv) Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, [2023 SCC OnLine SC 161].
(v) Sisu Bhavan v. Joy Yohannan [2008 (4) KLT 550].
(vi) Divine Providence Foundling Home, Idukki v. Raju Gopi and Another [2014 (3) KHC 298].
(vii) Afan Ansari v. State of Jharkhand, [2022 SCC OnLine Jhar 1649] = [MANU/JH/1200/2022].
(viii) Dilesh Nishad v. State of Chhattisgarh (MANU/CG/1664/2023).
(ix) Inayath Ali v. State of Telangana, [2022 SCC OnLine SC 1867].
(x) Surender Vijay Paswan v. State of Maharashtra and Anr., (2023:BHC-AS:34959).
6. Chapter VIII of the JJ Act deals with the adoption of children in general under the categories of orphan, abandoned and surrendered. Regulation 48 of the Adoption Regulations 2022 deals with the confidentiality of adoption records. Regulation 48 reads thus:
7. The intention of the statute is the paramount welfare of the adopted child. The JJ Act permits couples who maintain intense longing for a child, irrespective of religion, to adopt. Intention of Adoption
8. An adopted child cannot be at any point of his/her growth be violated of his/her privacy. We have come across many instances where blood sampl
The court established that the right to privacy of adopted children is paramount, and DNA tests should only be ordered in exceptional circumstances where their necessity is clearly demonstrated, bala....
The court affirmed that the evidence of the prosecutrix is sufficient for conviction in rape cases, and a DNA test is not necessary at an advanced trial stage, balancing this against the right to pri....
The court held that demands for DNA testing must respect privacy rights and are only permissible when directly relevant to the charges at hand.
The main legal point established in the judgment is that in criminal cases involving allegations of sexual offenses and disputed paternity, DNA testing can be ordered by the court if it is deemed nec....
DNA Test – It is not always necessary to conduct DNA test to ascertain whether a particular child was born to a particular person – It is burden of person who alleges or disputes paternity that he ha....
In paternity disputes, the presumption of legitimacy under Section 112 of the Indian Evidence Act prevails unless strong evidence of non-access is established, balancing privacy rights against the ne....
Point of law: The only disadvantage to the child which is put forward as an argument against the use of a blood test, not for therapeutic purposes but to ascertain paternity, is that the child is exp....
The only disadvantage to the child which is put forward as an argument against the use of a blood test, not for therapeutic purposes but to ascertain paternity, is that the child is exposed to the ri....
DNA test is also available before the Court, which is marked as Annexure-H and only in order to overcome the positive report of the DNA, the petitioner has approached this Court by invoking the writ ....
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