DNA test necessary for ascertaining paternity of the child son.

This revision has been filed against the order passed by the Judicial Magistrate, Perambalur in Crl.M.P.No.1990 of 2002 in Crime No.30 of 2001, allowing the petition filed under Section 53 Cr.P.C by the respondent herein and directing the petitioner herein to appear for the appropriate Medical Officer for Test according to the convenience.

2. The circumstances under which the said order came to be passed is as follows:

A complaint was given by the second respondent herein against the petitioner on 14.03.2001 stating that she was the resident of Badangi South Street. That about 10 years prior to the filing of the case, she was married to one Devaraj and they were residing at Badangi. It is further stated that at the time of their existence of marital bond, her brother by name Dharmadurai was also staying along with them. While that being so, there appears to have been quarrels between her and the said Devaraj, in view of the fact that she was impotent to conceive a child. Further, it is averred in the complaint that she was sent out of the matrimonial abode many times and was taken back. On one such occasion, when she along with her brother had been to the house of her husband, namely Devaraj, she found him to be with the company of another girl. On being questioned, they were beaten and chased out. After the said incident, the respondent appears to have been living with his brother at Badangi and was doing work as a cooly. It is at that juncture, the petitioner herein, namely Solaimuthu got acquainted with the respondent and by assuring her that he would marry, had sexual intercourse with her, whereby she became pregnant. When the said matter was reported to the petitioner, he had asked her to abort the same. However, she was refused. Thereafter, the petitioner has not cared to marry her and even on repeated persistence there was no signs of acceptance from the petitioner to marry the respondent. A child was born to the second respondent. Hence, she had resorted to the filing of the present complaint.

3. It may not be necessary to go much into the facts of the case, suffice it to state that the Inspector of Police, namely the first respondent had filed an application before the learned Magistrate to send the petitioner herein for DNA Test in order to find out whether the child born to Selvamani, was fathered by Solaimauthu. On consideration of the submissions advanced, the learned Magistrate had allowed the said petition, against which the present revision has been filed.

4. The learned counsel appearing for the petitioner would first submit that a person cannot be compelled to give blood as it is violative of Article 20(3) of the Constitution of India. I am afraid that this contention deserves to be rejected at the threshold itself, in view of the decision of the Apex Court reported in State of Bombay V. Kathi Kalu Oghad (AIR 1961 SC 1808), wherein Article 20(3) of the Constitution of India has been discussed and finally, Their Lordships of the Apex Court have held that merely asking the accused to give his signature, or thumb impression, is not violative of Article 20(3) of the Constitution of India.

5. A further reading of the judgment cited supra, would show that Their Lordships have clarified the Article 20(3) of the Constitution of India to mean that the accused cannot be compelled to be a witness against himself and emphasis has been made to the words "to be a witness". Added to the above, it is also made clear that giving samples of blood, or obtaining signatures or thumb impressions would not make him as a witness to testify against himself.

6. Coupled with the above, if we analyse the facts of the case that is available on hand, it is seen that the accused in this case has been asked to give blood samples, which is more or less in the same line as that of giving finger print or thumb impression to the investigating agency and therefore, there appears to be no violation of Article 20(3) of the Constitution