DNA Tests can violate Privacy Right

In a latest Judgment Supreme Court of India held that DNA Tests can violate Privacy Right so can’t be directed as matter of course as section 112 of Indian Evidence Act Protects Children.

While drawing the red lines clearly discernible for the usage of DNA tests the Supreme Court in a most laudable, learned, landmark and latest judgment titled as Inayat Ali and Anr: vs State Of Telangana and Anr. in Criminal Appeal No. 1569/2022 arising out of the SLP (CrL) No. 4946/2017, that was pronounced finally on sep 15, 2022 in exercise of its criminal appellate jurisdiction has set aside a decision of Hon’ble High Court of State of Andhra Pradesh allowing the DNA testing to determine the paternity of two Children.

DNA Tests can violate Privacy Rights

In its judgment Supreme Court has mentioned in para no. 15 that:

DNA is unique to an individual and can be used to identify a person’s identify, trace families linkages or even reveal sensitive health information. Whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this court in K.S. Puttaswamy (Aadhaar Judgment) vs Union of India, 2019(1) SCC 1 where in right to privacy is decleared as constitutionally protected right in India. Therefor court should therefor examine the proportionality of the legitimate aims of being pursued i.e. Whether the dame are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA testing.

Section 112 of Indian Evidence Act

Supreme Court further mentioned that Section 112 of Indian Evidence Act “The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten”

It is further noted that Bench hastens to add in para 8 that : In our opinion, the trail Court as also the Revisional Court had completely ignored the said fact and proceeded as if the children are the material object who could be sent to forensic analysis.

Furthermore, the bench then succinctly direct in para 10 ” we, accordingly, allow the appeal and set aside the judgment of the High Court to sent the children for DNA testing.

You can get the complete Judgment from Detailed Judgment

Also read How to write Answer in Judiciary Mains

Approach of Court under Section 112 of Indian Evidence Act

The concept of section 112 of Indian Evidence Act is to protect the dignity of the child because it is not his fault then the new born baby bear all the concequescies throughout his life. Due to this concept even if the baby is born 5 or 6 days after the expiration of 280 days of divorce of husband and wife still court will consider his child.

Even if the child is born after 4-5 days of marriage then also child is considered to be the legitimate child of the father. Here very strict Burdon of prove is on the father to prove no access to wife to rebut the presumption of section 112.

Child of Void Marriage

The presumption of the section 112 of Indian Evidence Act does not apply on the child of Void marriage. It is also applicable on the child of valid marriage. For the purpose of sec 112 of Indian Evidence Act the child born out of void marriage is illegitimate. But it is due to section 16 of Hindu Marriage Act which makes that child born out of void marriage as legitimate child.