Is The Consent Of A Minor Victim Of Rape Required For DNA Testing Of Products Of Conception (PoC) Or Of The Baby Born As A Result Of The Assault?

1. Relevant Legal Framework

Requirement of Consent

The procedure for medical examination of a victim of rape and/or sexual offences has been laid down in Section 164A of the Code of Criminal Procedure, 1973 (Cr.P.C). As per Section 164A(1), Cr.P.C., medical examination of a woman victim of rape shall be conducted by a Registered Medical Practitioner (“RMP”) or any other practitioner with the consent of the woman or that of a person competent to consent on her behalf.^[2] Collection of material from the person of the woman for DNA profiling is a part of such medical examination.^[3] Further, the medical examination report should expressly record that such consent has been obtained.^[4] It is also clarified that “nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.”^[5] Section 184 of the Bhartiya Nagarik Suraksha Sanhita, 2023, that has been recently passed, but is yet to come into force, is the same as Section 164A, Cr.P.C.^[6]

Section 27(1), POCSO Act states that the medical examination of a victim under the POCSO Act has to be conducted in accordance with Section 164A, Cr.P.C. Therefore, the standards related to consent prescribed under Section 164A, Cr.P.C, will apply with equal force in cases of minor victims under the POCSO Act, 2012.

Consent of rape victim for medical examination under MoHFW Guidelines

The consent requirements are further elaborated upon in the Ministry of Health and Family Welfare, Guidelines & Protocols Medico-Legal Care For Survivors/Victims Of Sexual Violence, 2013 (“MoHFW Guidelines”). It emphasizes upon taking informed consent of the victim for all purposes of medical examination^[7] such as “examination, sample collection for clinical and forensic examination, treatment and police intimation.”^[8]. The consent form must be signed by the person undergoing the examination when they are above 12 years of age. For a child below 12 years, the consent must be taken from the parent or guardian of the child. The Guidelines also recognise the right to refuse the medical examination or any part of it^[9] and such refusal must be documented. Lastly, it states that only in life threatening situations, the doctor may initiate treatment without obtaining consent in view of Section 92, Indian Penal Code, 1860 (“IPC”).^[10]

'Guardian' under JJ Act

The term guardian is defined under Section 2(31), Juvenile Justice (Care and Protection) Act, 2015 as follows:

“guardian” in relation to a child, means his natural guardian or any other person having, in the opinion of the Committee or, as the case may be, the Board, the actual charge of the child, and recognised by the Committee or, as the case may be, the Board as a guardian in the course of proceedings;”

Personal law of the child will have to be considered while identifying the natural guardian. For instance, in the context of a Hindu child, the Hindu Minority and Guardianship Act, 1956 will apply, as per which the father and after him, the mother is the natural guardian of a minor.^[11] If the child is born outside of wedlock, the mother is the natural guardian. Under Muslim Personal law, the father is recognised as the natural guardian of a minor.

In the context of a child in need of care and protection who is also a victim under the POCSO Act, the provisions of the JJ Act, 2015 will also have to be taken into consideration if the natural guardian is dead, cannot be found or traced, or is found unfit or incapacitated to care for and protect the safety and well-being of the child. In such circumstances, the CWC can recognise the person having the actual charge of the child as a guardian for the purpose of giving consent for medical procedures, bearing in mind that consent by a child above the age of 12 years is recognised under the MOHFW Guidelines.

2. DNA Testing in the Context of Adoption

It is seen that in cases where a minor victim under the POCSO Act surrenders a child, a DNA examination is insisted upon before the baby is declared legally free for adoption. In this context, Regulation 39 of the Adoption Regulations, 2022 states:

“39. Child Welfare Committee―The Child Welfare Committee shall take actions as provided in regulations 6 and 7 and as provided in rule 18 and 19 of the rules.

Explanation: Further for removal of doubt, it is hereby clarified that, in cases where a child is willingly surrendered by the biological mother, the child being born out of non-consensual sexual relations or where cases have been registered under the Protection of Children from Sexual Offences Act or Indian Penal Code, the Child Welfare Committee is obliged to issue an order clearing the child legally free for adoption within the stipulated period within which the Dioxyribo Nucleic Acid (DNA) sample collection should be completed to avoid undue harassment to the families who adopt the children in such cases.”

It must be noted that Regulation 39 of the Adoption Regulations does not vest the CWC with the power to order a DNA test. It merely states that the conduct of such a test should be completed within the period taken by the CWC to declare a child legally free for adoption. The overriding framework related to the conduct of medical examination and the collection of material for DNA testing is Section 164A, Cr.P.C. As outlined in Section A above, consent is essential for the conduct of a medical examination of a victim of rape, including child victims under the POCSO Act. If, for instance, a woman or parent/guardian, in case of a child, does not provide consent for DNA testing of the baby at the time of surrender, the CWC cannot pass an order to override this decision.

3. Relevant judicial decisions

Decisions by both the Supreme Court and the High Court emphasize consent in cases of collection of forensic evidence from the victim. In rape cases involving pregnancy, the courts have noted that paternity has no relevance in establishing the guilt of the accused and the victim cannot be compelled to undergo DNA testing or do the same for her child.

In the landmark case of Goutam Kundu v. State of West Bengal,^[12] in a maintenance petition under Section 125, Cr.P.C., to ascertain paternity of the respondent, the Supreme Court held that “no one can be compelled to give a sample of blood for analysis”. In Aparna Ajinkya Firodia v. Ajinkya Arun Firodia,^[13] the Supreme Court highlighted that paternity related questions have a great impact on the identity of a child and may even lead to identity crisis in children when DNA tests are routinely ordered in cases where the question of paternity is merely incidental to the main issue.

In Swapan Mondal v. The State,^[14] a conviction and order of sentence passed by the Special Judge (POCSO), Andaman and Nicobar Islands, Port Blair under the POCSO Act was under challenge. One of the contentions raised by the defence was that the victim refused to give blood samples for DNA profile test for establishment of the paternity of her baby. The Calcutta HC dismissed the said contention and upheld the conviction. It observed that as the case was not concerned with the paternity of the child, the victim's refusal for DNA profiling would not be fatal to her case. Similarly, in Dilesh Nishad v. State of Chattisgarh,^[15] the two appellants challenged the order of conviction for rape under the IPC and POCSO Act. They also filed an application for conducting a DNA test of themselves and the victim as also the victim's newly born baby. The Chhattisgarh HC rejected the application for the DNA test and upheld the conviction. It observed that the DNA testing of the victim's child would be violative of the fundamental right to privacy of the infant.

However, in departure from the other decisions, the Madras HC took a different view in Saranya v. State and Ors.^[16] wherein the Madras HC was asked to decide if a criminal court can direct a prosecution witness and her child to subject themselves to DNA profiling along with the accused. In this case, the Public Prosecutor filed a petition before the trial Court for a direction to the minor victim and her child to undergo DNA profiling along with the accused no. 1. Accused no. 1 agreed to undergo the DNA profiling, but the minor victim engaged a counsel and filed her objections for subjecting herself and her child to DNA analysis. The trial court allowed this petition which led to the minor victim approaching the High Court to challenge the same. The Madras HC noted the coercive powers to allow the petition on the basis of Section 349, Cr.P.C.^[17] It also relied on Goutam Kundu, Sharda v. Dharmpal^[18] and Bhabani Prasad Jena v. Orissa State Commission for Women^[19], and noted the eminent need of arriving at the truth by subjecting the minor victim and her child to DNA profiling:

“57. In the case at hand, it is not the paternity of the child that is in issue. The issue before this Court is whether Manikandan [A1] has committed an offence under the POCSO Act … One has to see the picture on a larger canvas and if so seen, there can be no doubt that the harm that would befall the administration of criminal justice is far greater, if witnesses like "X" and her child cannot be subjected to DNA profiling. The harm that would befall if such a power is not recognised in the trial Court will be far greater, because it will be easier for people to prey upon minor girls from downtrodden communities like predators and force them to turn turtle in the witness box.”

In the adoption context, in a recent case, Surender Vijay Paswan v. State of Maharashtra,^[20] the Bombay High Court while granting bail to an accused in a rape case under POCSO Act and the IPC, noted that the DNA test of the victim of the child after being given in adoption, “may not be in the interest of the child and future of the child”. The case was at the investigation stage and it was argued by the applicant that the DNA test of the child has not been submitted. The Investigation Officer, during the hearing then revealed that the child had been given in adoption and the concerned institution is not disclosing the identity of the parents. The court acknowledged the difficulty and made the above observation.

Based on the statutory provisions and judgments, it emerges that collection of products of conception or samples of an infant for DNA examination can be done only with the consent of the victim or a person on behalf of the victim. Since the MOHFW Guidelines recognise consent of persons above 12 years, a minor above 12 years can provide or withhold consent for DNA examination of self or their child. While a court may order the conduct of a DNA test, the standards laid down by the Supreme Court with respect to the balance between the privacy of the parties concerned and whether the test is eminently needed to arrive at a just decision have to be adhered to. It is also significant to note that several courts have held that in rape cases involving pregnancy, paternity has no relevance in establishing the guilt of the accused and the victim cannot be compelled to undergo DNA testing or subject her child to such a test. With respect to DNA testing of a surrendered child of a child victim under the POCSO Act or the IPC, the consent framework remains the same. It is also clarified that CWC does not have the right to order a DNA test to declare a child legally free for adoption.

Ranu Tiwari is a Legal Researcher and Swagata Raha is a Director-Research at Enfold Proactive Health Trust.. Views are personal.