A bench of Justices Aniruddha Bose and Vikram Nath said: “The trial court as also the revisional court had completely ignored the said factor and proceeded as if the children were material objects who could be sent for forensic analysis.”
It noted that the substance of the complaint was not related to paternity of the children of the mother, who claimed she had been forced to cohabit and develop a physical relationship with her brother-in-law, in a dowry harassment case with her husband and his brother.
The woman had lodged a complaint against her husband and his brother under Sections 498A, 323, and 354 and other ancillary provisions of the Indian Penal Code, 1860.
The top court noted that the trial court allowed the woman’s application mechanically, on the premise that the DNA fingerprint test is permissible under the law. It said that both the trial and the high court ignored that the paternity of the children was not in question in the subject-proceedings.
It further added that merely because something is permissible under the law cannot be directed as a matter of course to be performed particularly when a direction to that effect would be invasive to the physical autonomy of a person.
The bench said: “The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the trial court’s direction.”
In February 2017, the high court had ordered a DNA test on the claim made by the mother of two children. The woman had filed an application under Section 45 of the Indian Evidence Act with the appeal seeking direction to obtain an expert opinion for the DNA fingerprint test comparing blood samples of her two daughters. The trial court allowed her plea, which was challenged by her husband and his brother before the high court. The high court held that such a DNA fingerprint test was permitted under Sections 53, 53A and 54 of the Criminal Procedure Code (CrPC).A
Setting aside the high court order, the top court said: “The judgment under appeal, blood sampling of the children was directed, who were not parties to the proceeding nor were their status required to be examined in the complaint of the respondent no.2. This raised doubt on their legitimacy of being borne to legally wedded parents and such directions, if carried out, have the potential of exposing them to inheritance related complication.”
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