Kerala HC Lays Down Guidelines For DNA Test Of Children Born To Rape Victims And Given In Adoption

While ruling on a very significant legal point pertaining to the DNA test of children, the Kerala High Court in a most pragmatic, persuasive, progressive, path breaking and pertinent judgment titled Suo Moto vs State of Kerala in Criminal M.C No.5136 of 2023 that was pronounced as recently as on April 19, 2024 has minced just no words to hold unswervingly that DNA examination of children born to rape victims who are given in adoption may cause emotional imbalance and violate their right to privacy and hence Courts shall not entertain DNA examinations of such children. It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice K Babu also plainly held that the DNA examination of adopted children would also defeat the sanctity of adoption. We thus see that the Court set aside various orders passed by the Special Courts for collecting blood samples of adopted children for trying offence of rape and other cases under the POCSO Act. The matter has now been posted for further hearing on May 27, 2024.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice K Babu of Kerala High Court at Ernakulam sets the ball in motion by first and foremost putting forth in para 1 that, “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.”

To put things in perspective, the Bench envisages in para 2 that, “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.”

Needless to say, the Bench stipulates in para 3 that, “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.”

While citing a recent, remarkable and relevant Apex Court ruling, the Bench observes in para 15 that, “Aparna Ajinkya Firodia v. Ajinkya Arun Firodia [2023 SCC OnLine SC 161], was a case wherein the parents were fighting in divorce proceedings. DNA was sought for. The Supreme Court held that only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy, the Court can direct such a test.”

While citing a recent and relevant case law, the Bench hastens to add in para 20 that, “In Dilesh Nishad v. State of Chhattisgarh (MANU/CG/1664/2023), the Chhattisgarh High Court held that ascertaining the paternity of the victim’s child is not at all required and directing for DNA test of the child of the victim would violate the privacy right of the infant, which is a constitutionally protected right.”

While citing yet another relevant and recent case law, the Bench points out in para 21 that, “In Surender Vijay Paswan v. State of Maharashtra and Anr.,(2023:BHC-AS:34959), the Bombay High Court while considering an application filed by the Investigating officer in a rape case seeking permission to collect DNA sample of the victim’s child who was already given in adoption held that DNA test of the child may not be in the interest of the child.”

Most remarkably, the Bench propounds in para 23 that, “Regulation 39 mandates that the Child Welfare Committee has to collect the DNA sample to avoid undue harassment to the families who adopt the children. This indicates that in an extreme case of necessity, the prosecution has an option to get the DNA sample.

The Conclusions

(i) Where blood samples are ordered to be collected for DNA tests from adopted children after they were given in adoption, it may imbalance their emotional status, which will only defeat the purpose of the divine concept of adoption.

(ii) Rape as defined in Section 375 IPC and penetrative sexual assault as defined in the POCSO Act do not demand the paternity of the child born to rape victims to be proved to establish the offence. When there is a conflict between the right to privacy of a person not to submit himself forcefully to medical examination and the duty of the Court to reach the truth the Court must exercise its discretion only after balancing the interest of the parties and on due consideration whether for a just decision in the matter, DNA test is essentially needed.

(iii) All agencies or authorities involved in the adoption process are bound to ensure that the confidentiality of adoption records is maintained except as permitted under any other law for the time being in force and for such purpose, the adoption order shall not be displayed on any public portal.

(iv) The Child Welfare Committee has a statutory duty to collect DNA samples of children given in adoption before the completion of the process of adoption.

(v) Even in cases where the children were not given in adoption, in a rape case or cases coming under the POCSO Act, the request for a DNA test of the child of the victim need to be considered on the touchstone of the principle of “eminent need” and doctrine of proportionality.”

Most significantly, what constitutes the cornerstone of this notable judgment is then laid bare in para 24 wherein it is postulated and mandated about the guidelines putting forth that, “Therefore, the following guidelines are issued:

(i) The Courts shall not entertain applications seeking DNA examination of children given in adoption.

(ii) The Child Welfare Committee shall see that the DNA samples of children given in adoption are taken before the completion of the process of adoption.

(iii) All agencies or authorities involved in the adoption process shall ensure that the confidentiality of adoption records is maintained except as permitted under any other law for the time being in force.

(iv) Even in cases where the children were not given in adoption the Court shall consider the request for a DNA test of the children of the victim only after assessing the principle of “eminent need” and doctrine of proportionality.”

Do note, the Bench notes in para 25 that, “The Fast Track Special Court, Manjeri as per order dated 31.08.2021 in Crl.M.P No.210/2021 in S.C No.603/2017 ordered a further investigation under Section 173(8) of Cr.PC in a case alleging offences punishable under Sections 450 and 376(2)(f) of IPC and Sections 5(j), 5(j)(ii) and 5(l) read with Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 holding that analysis of the blood sample of the child to prove the paternity is required.”

Be it noted, the Bench notes in para 26 that, “The Special Court for the Trial of Offences under the Protection of Children from Sexual Offences Act, 2012, Kattappana as per order dated 05.08.2022 in Crl.M.P No.693/2022 in S.C No.1/2018 directed the Kerala State Adoption Resource Agency to furnish details of the child born to a rape victim for facilitating collection of blood samples from the child.”

It is worth noting that the Bench notes in para 27 that, “The Judicial First Class Magistrate Court, Ramankary as per order dated 03.11.2022 in Crl.M.P No.2914/2022 directed the taking of blood sample of the child who was given in adoption. The Additional Sessions Court-I, Kollam as per order dated 17.11.2022 in S.C No.857/2017 directed the Member Secretary of the Kerala State Adoption Resource Agency to furnish necessary details of the child of the victim for facilitating collection of blood sample of the child. The Sessions Court, Palakkad Division as per order dated 19.05.2023 in Crl.M.C No.2077/2023 in S.C No.91/2015 directed the Member Secretary of the Kerala State Adoption Resource Agency to furnish the details of the child of the victim given in adoption for facilitating collection of blood samples of the child.”

Finally and as a corollary, the Bench then concludes by holding in para 28 that, “In view of the conclusions arrived at above, the impugned orders are not sustainable. Therefore, the order dated 31.08.2021 in Crl.M.P No.210/2021 in S.C No.603/2017 of the Fast Track Special Court, Manjeri, the order dated 05.08.2022 in Crl.M.P No.693/2022 in S.C No.1/2018 of the Special Court for the Trial of Offences under the Protection of Children from Sexual Offences Act, 2012, Kattappana, the order dated 03.11.2022 in Crl.M.P No.2914/2022 of the Judicial First Class Magistrate Court, Ramankary, the order dated 17.11.2022 in S.C No.857/2017 of the Additional Sessions Court-I, Kollam and the order dated 19.05.2023 in Crl.M.C No.2077/2023 in S.C No.91/2015 of the Sessions Court, Palakkad Division stand quashed. Post the Criminal M.C for further hearing on 27.05.2024.”

In sum, what we can thus reasonably deduce from the above brief discussion is that the guidelines that have been laid down so succinctly by the Kerala High Court for the DNA test of children born to the rape victims and given in adoption must be definitely implemented strictly in letter and spirit. There can be definitely just no gainsaying that it is the bounden duty of the Courts to ensure that what the Kerala High Court has directed in this leading case is implemented in totality most strictly and not allowed to be observed in the breach on any pretext! No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.