While drawing the red lines clearly discernible for the usage of DNA tests, the Supreme Court in a most laudable, learned, landmark and latest judgment titled Inayath Ali & Anr. Vs State of Telangana & Anr. in Criminal Appeal No. 1569/2022 (Arising out of the SLP (Crl.) No. 4946/2017) that was pronounced finally on September 15, 2022 in exercise of its criminal appellate jurisdiction has set aside a decision of the Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh High Court allowing DNA testing to determine the paternity of two children to verify a claim made by their mother that she had been forced to cohabit and develop a physical relationship with her brother-in-law.

It must be mentioned here that this appeal had arisen out of a dowry harassment case in which the complainant had lodged a first information report against her husband and his brother under Sections 498A, 323 and 354 and other ancillary provisions of the Indian Penal Code, 1960. It also certainly deserves mentioning here quite clearly that the Division Bench while allowing the appeal that was preferred by the accused held very rightly that the Trial Court had accepted the application of the complainant mechanically.

It also merits mentioning that this noteworthy judgment arises out of the impugned Judgment and Order dated 20.02.2017 passed by the Hon’ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Criminal Revision Case No. 2246 of 2014. It must be not lost sight of that the Apex Court made it clear 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. Of course, the Apex Court also made it clear that the important question is not only whether it would amount to testimonial compulsion.

It was laid down by the Apex Court that the DNA test also encompasses right to privacy. It was clearly stated that the Test could be prejudicial to the privacy rights of persons subjected to it. It was also pointed out that the DNA test may also be prejudicial to future of children subjected to the test. (Para 9).

It is worth paying attention that the Apex Court also made it very clear while setting aside the direction for DNA test of children on the ground that children were not parties to the proceedings and so allowing the test will have the potential of exposing them to inheritance related complication. As we also know, Section 112 of the Evidence Act gives a protective cover to children from allegations of this nature. (Para 7). Very rightly so!

At the very outset, this brief, brilliant and balanced judgment authored by the Bench of Apex Court comprising of Hon’ble Mr Justice Aniruddha Bose and Hon’ble Mr Justice Vikram Nath sets the ball in motion by first and foremost putting forth in para 1 that:
Leave granted.

To put things in perspective, the Bench then envisages in para 2 that:
Heard learned counsel appearing for the parties. The present proceeding arises out of an FIR lodged by the defacto complainant (respondent no.2) followed by chargesheet pertaining to offences under Sections 498A, 323, 354, 506 and 509 of Indian Penal Code, 1860 (the Code). The FIR was made against the appellants, the appellant no. 2 being her husband and the first appellant being her brother-in-law (husband’s brother).

Having regard to the nature of controversy involved in this proceeding, we have avoided revealing her identity in this judgment and direct the Registry to mask her identity with XX. Her complaint mainly related to dowry allegations as well as harassment and physical violence committed on her by her husband and her in-laws. The Trial Court had proceeded in the case and several witnesses were examined, when the complainant filed an application under Section 45 of the Indian Evidence Act, 1872 with a prayer for direction for obtaining expert opinion for DNA fingerprint test comparing blood samples of two minor daughters of the respondent no.2 with that of the first appellant. The basis of this application was her allegation that she was forced to cohabit and develop a physical relationship with the appellant no. 1 and the two children were born out of that relationship. The Trial Court allowed her prayer and she, along with the appellants and the children, were directed to give blood samples to a specified hospital for obtaining an expert opinion on DNA fingerprint test.

As it turned out, the Bench then enunciates in para 3 that:
The appellants invoked the revisional jurisdiction of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh seeking invalidation of the said Order. The revisional application, however, was dismissed. The High Court held that such DNA fingerprint test was permitted under Sections 53, 53A and 54 of the Criminal Procedure Code, 1973. It was observed in the judgment of the High Court, relying on several authorities, that it does not tantamount to testimonial compulsion. It was also held by the High Court that in the event the directions were not complied with, the Court had to draw an adverse inference. The order of the Trial Court was, thus, upheld.

As we see, the Bench then discloses in para 4 that:
We have been taken through the FIR and the chargesheet as well as the additional chargesheet by the learned counsel for the parties. The allegations, which we have already indicated, were primarily in respect of dowry related offences but later on the offence related to outraging modesty of the respondent no.2 was added. Paternity of the children of the complainant were not directly related to the allegations, out of which the present appeal arises.

While citing the most recent and most relevant case law, the Bench then points out in para 5 that:
In the case of Ashok Kumar v. Raj Gupta and Ors. [(2022) 1 SCC 20] decided by a Coordinate Bench, sparing use of the DNA fingerprint test was opined. This was a suit for declaration of ownership of certain property and the defendants had raised the plea that the plaintiff was not the son of the original owner thereof, from whom he claimed to have derived the title. In that case also, plea was made for conducting a DNA test. The Coordinate Bench of this Court held, referring to, inter-alia, Section 112 of the 1872 Act:-

15. DNA is unique to an individual (barring twins) and can be used to identify a person's identity, trace familial linkages or even reveal sensitive health information. Whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this Court in K.S. Puttaswamy (Aadhaar5 J.) v. Union of India [K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1], wherein the right to privacy has been declared a constitutionally protected right in India. The Court should therefore examine the proportionality of the legitimate aims being pursued i.e. whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA test.

While pointing out what was glossed over by the Trial Court as well as the Revisional Court, the Bench then mentions in para 6 that:
In the present proceeding, we are taking two factors into account which have been ignored by the Trial Court as also the Revisional Court. The Trial Court allowed the application of the respondent no.2 mechanically, on the premise that the DNA fingerprint test is permissible under the law. High Court has also proceeded on that basis, referring to different authorities including the case of Dipanwita Roy v. Ronobroto Roy [2015 (1) SCC 365]. The ratio of this case was also examined by the Coordinate Bench in the decision of Ashok Kumar (supra).

Be it noted, the Bench then hastens to add in para 7 that:
The first factor, which, in our opinion, is of significance, is that in 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. Section 112 of the Evidence Act, also gives a protective cover from allegations of this nature. The said provision stipulates:-

Birth during marriage, conclusive proof of legitimacy:
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

It is worth noting that the Bench then hastens to add in para 8 that:
In our opinion, 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. The other factor, in our opinion, which was ignored by the said two Courts is that the paternity of the children was not in question in the subject-proceeding.

Most significantly, the Bench then clearly, cogently and convincingly holds in para 9 that:
The substance of the complaint was not related to paternity of the children of the respondent no.2 but the question was whether the offences under the aforesaid provisions of the 1860 Code was committed against her or not. The paternity of the two daughters of the respondent no.2 is a collateral factor to the allegations on which the criminal case is otherwise founded. On the basis of the available materials, in our opinion, the case out of which this proceeding arises could be decided without considering the DNA test report. This was the reasoning which was considered by the Coordinate Bench in the case of Ashok Kumar (supra), though that was a civil suit.

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 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.

Furthermore, the Bench then succinctly directs in para 10 that:
We, accordingly, allow the appeal and set aside the judgment of the High Court. Consequentially, the order of the Trial Court passed on 17th October, 2014 in Crl.M.P. No. 92 of 2014 arising out of S.C.No. 70/2012 shall also stand set aside.

Going ahead, the Bench then states in para 11 that:
Pending application(s), if any, shall stand disposed of.

Finally, the Bench then concludes by holding aptly in para 12 of this notable judgment that:
There shall be no order as to costs.

All in all, we thus see that the Apex Court has made it quite manifestly clear that the DNA tests can violate privacy right, can’t be directed as a matter of course and Section 112 of the Evidence Act protects children. Of course, it thus merits no reiteration that all the courts must pay heed to what the Apex Court has ruled in this leading case and comply with accordingly in similar such cases! There can be just 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