Kerala High Court Stays Orders For Collecting Blood Samples Of Children Of Rape Victims For DNA Testing

The Kerala High Court has stayed various lower court orders directing the collection of blood samples of children of rape and Protection of Children from Sexual Offences Act (POCSO) survivors for DNA testing.

Justice K. Babu passed the Order staying the implementation of six lower court orders of Mancheri Fast Track Sessions Court, Kattapana POCSO Special Court, Ramankari Judicial First Class Magistrate Court, Kollam Additional Sessions Court I, Devikulam POCSO Special Court, and Palakkad Sessions Court. 

The order was passed in a suo motu case that was initiated on the basis of a report submitted by Advocate A. Parvathi Menon, the Project Coordinator of Victim Rights Centre, Kerala Legal Services Authority (KeLSA). The said report was forwarded to the Court Advocate General K Gopalakrishna Kurup for its consideration. Justice Alexander Thomas had thereafter accepted the petition on file, and Advocate Menon was appointed as the Amicus Curiae in the matter. 

The report draws the attention of the Court to the orders issued by various courts directing DNA sample collection of children born to POCSO and rape victims for strengthening the case of rape. The report states that such Orders are in conflict with Regulation 48 of Adoption Regulations, 2022, which stipulates confidentiality of records to be maintained in case of adopted children by all the agencies and authorities that are involved in the same. The report emphasizes in this regard that neither Section 375 IPC which defines the offence of 'rape' nor the various criminal law amendments envisage the conduct of DNA test on the children of rape victims in order to prove the offence of rape. 

Advocate Menon further states in her report that orders to collect DNA samples from such children who have been adopted and already blended well with their adoptive families would affect their emotional state of mind, and could even defeat the very purpose behind adoption. 

"An adopted child cannot be at any point of his/her/their growth, be violated of his/her/their privacy," the report emphasizes.

Advocate Menon has also referred to the Apex Court's refusal to entertain a special leave petition arising out of an Allahabad High Court judgment setting aside the Sessions Court order permitting DNA test to be conducted on a child of a rape victim based on an application preferred by the Prosecution. "Identity of the father has no relevance in the offence under Section 376 IPC. What if he is not the father of the child, does it obviate rape? We don't allow DNA testing of the child just at the drop of a hat," the Bench comprising the present Chief Justice D.Y. Chandrachud and Justice Bopanna had observed therein. 

The report thus sought such orders to be quashed and appropriate guidelines to be issued in the matter. 

Case Title: Suo Motu v. State of Kerala 

Case Number: Crl.MC 5136/ 2023