Subjecting Children Of Rape Victims To DNA Tests Will Defeat Divine Concept Of Adoption: Amicus Curiae Tells Kerala High Court

Amicus Curiae Advocate A. Parvathi Menon on Monday informed the Court that subjecting the children of rape or POCSO victims, who had thereafter been given in adoption, to DNA tests would tantamount to defeating the purpose of 'the divine concept of adoption'. 

"An adopted child cannot be at any point of his/her/their growth be violated of his/her/their privacy. There are instances where blood samples for DNA tests are ordered to be collected from adopted children who have attained an age of reasonable comprehension. In some cases, adopted parents would not have even divulged the fact of adoption to the child. The child would have blended so well with the adopted family that a sudden revelation that he/she/they is an adopted child and that too of a rape victim can imbalance their emotional status and can result in them exhibiting behavioural disorders and aberrations. This exercise of subjecting the child to DNA tests will only defeat the purpose of the divine concept of adoption especially when Law protects the rights of the rape survivor otherwise," Advocate Menon averred.

The development arises in the suo motu case initiated based on a report submitted by Advocate Menon highlighting the legality and the adverse impact on the adopted children and the respective families following the issuance of orders by competent courts to collect the DNA samples of children born to rape victims (POCSO or otherwise) on applications preferred by the prosecution to strengthen the case of rape.

Single Judge Bench of Justice K. Babu had earlier stayed various lower court orders which permitted such collection of blood samples of children of rape and POCSO survivors for DNA Testing. 

The Court today extended the stay on such orders for three months. 

Relying on the decision in Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women (2010), wherein the Apex Court propounded the test of 'eminent need', and emphasized that DNA test ought to be allowed only if it was felt to be eminently needed, Advocate Menon said that the conduct of such tests on a child who is already given in adoption therefore could result in devastating effects on it. 

"Balancing of the interests of the parties coupled with applying the test of eminent will essentially help to conclude that DNA tests on children of sexual assault victims given in adoption will be detrimental to the spirit of Adoption law and are therefore not to be permitted," she said. 

The Amicus Curiae also drew the attention of the Court to the decision in Ashok Kumar v. Raj Gupta (2021), which laid down that Courts would have to examine the proportionality of the legitimate aims being pursued, i.e whether they may have an adverse impact on the person and justify an encroachment upon the privacy and personal autonomy of the person being subjected to the DNA Test; and Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023), wherein the Apex Court underscored the right of children not to have their legitimacy questioned frivolously before a Court of Law and recognized the same as an essential attribute of the right to privacy. 

Advocate Menon pointed out that in Dilesh Nishad v. State of Chattisgarh (2023), the Chattisgarh High Court had ruled that ascertaining the paternity of the child born to a gang rape minor victim was not necessary, and that the conduct of the said test would violate the privacy right of the infant. She added that the Bombay High Court in Surender Vijay Paswan v. State of Maharashtra and Anr. had also rejected the prosecution plea for conducting DNA tests on the children born out of sexual assaults and who had been given in adoption, finding that the same may not be in the best interest and future of the child.

Additionally, the Amicus Curiae submitted that the Telangana High Court had taken the view in Afan Ansari v. State of Jharkhand & Anr. (2022) that order to conduct DNA Tests cannot be passed as a matter of course since such a direction may encroach privacy and physical autonomy of individuals. 

The counsel submitted that Section 375 IPC which defines rape does not demand the paternity of the child born to a rape victim to be proved in order to punish the accused for rape. She added that the criminal law amendments widening the scope of Sec 376 IPC also did not demand a situation for the conduct of a DNA test on the child of the rape victim in order to prove the offence. 

Advocate Menon submitted that Explanation to Regulation 39 of the Adoption Regulations 2022 provides for the collection of DNA samples at the instance of the Child Welfare Committee from children born to sexual assault victims, when surrendered by the biological mother but before the statutory period for declaring them fit for adoption is attained.

The counsel added that she would also place cases and situations where the victim faced gross injustice due to the rejection of the request to conduct DNA tests on children born out of the sexual assault but given in adoption, and sought time for the same. 

The matter has been posted for further consideration at a later date.

Case Title: Suo Motu v. State of Kerala

Case Number: Crl.MC 5136/ 2023