A Rape Victim cannot be forced to undergo a DNA test to determine the paternity of her Child of Rape as it violates her Rights to Personal Liberty and Privacy

On December 17, 2017, the revisionist in the present case, Gulafsa Begum, filed a First Information Report under Sections 376 (Rape), 504 (Intentional insult with the intent to provoke breach of the peace), 506 (Punishment for criminal intimidation) and Section 3 of the Protection Of Children from Sexual Offences Act, 2012, against the respondents (the Opposite Party) for allegedly raping and impregnating her 14-year-old daughter seven months ago. Upon the realization of the pregnancy of her daughter, the revisionist asked the respondent to marry her daughter, but the father of the respondent refused to allow his son to marry the victim. A charge-sheet was filed  against the respondent on June 13, 2014, before the Court of the Chief Judicial Magistrate, Sultanpur. The case was transferred to the Juvenile Justice Board (JJB), Sultanpur after the court realized that the respondent was a minor during the alleged rape. The respondent asked the victim to undergo a DNA test; however, the JJB rejected the application in an order on March 25, 2021, after objections were raised by the counsel of the revisionist, wherein the said order was challenged by the respondent before the Additional Sessions Judge, Sultanpur as Shameem @ Bugul v. State of Uttar Pradesh (2021) C.A. No. 19/ 2021. The order stated that accepting the application of the respondent to conduct a DNA test on the child of the victim would delay the trial, wherein the order elucidated that such an application can only be moved before a court of law when the respondent (the accused) are being examined under Section 313 of the Code of Criminal Procedure, 1973.

In the present case, the learned counsel for the revisionist held that the application to conduct a DNA test to determine the paternal lineage of the victim’s child without the express consent of the victim and her mother (because the victim is a minor) is bad in law. The counsel added that the issue herein was related to the rape of the victim and not to determine the paternal lineage of the victim’s child, wherein the counsel held that determining the parentage of the child cannot be used conclusively to determine the occurrence of the said rape. It is worth noting that in the case of Goutam Kundu v. State of West Bengal & Anr. (1993) 3 SCC 418, the Supreme Court held that a court of law cannot order a blood test and that an application for the same cannot be entertained; however, the court held that a blood test can be ordered if it can be established that the blood test shall have no negative consequences without any compulsion on anyone to provide a blood sample for the said test. In the case of Ashok Kumar v. Raj Gupta & Ors. (2021) C.A. No. 6153/ 2021, the Supreme Court held that forcing an unwilling individual to undergo a DNA test violates the right to personal liberty and privacy of the unwilling individual. The court held that the entertainment of the appeal by the respondent before the Additional Sessions Judge is bad in law because the case at hand is about determining if rape had been committed against the victim and not about fixating the paternity of the victim’s child. Justice Sangeeta Chandra of the Allahabad High Court holds that there is no reason to conduct a DNA test on the child of the victim to determine the parentage of the child.

The Allahabad High Court upheld the judgement of the lower court to reject the application of the respondent to conduct a DNA test on the victim’s child; however, the high court opined that the lower court’s observation of allowing the said application under Section 313 of the Code of Criminal Procedure, 1973 during the examination of the accused (the respondent ) is to be considered against its merits when the said application is taken up.

In a nutshell, in the case of criminal revision of Gulafsa Begum v. State of Uttar Pradesh (2021) C.R. No. 477/ 2021, Justice Sangeeta Chandra of the Allahabad High Court held that forcing a rape victim to undergo a DNA test to determine the parentage of the child from rape violates the right to personal liberty and privacy of the said victim and hence, the same cannot be allowed per the court.

One thought on “A Rape Victim cannot be forced to undergo a DNA test to determine the paternity of her Child of Rape as it violates her Rights to Personal Liberty and Privacy

  1. Jackie Mellencamp says:

    A motivating discussion is definitely worth comment. There’s no doubt that that you should publish more on this topic, it might not be a taboo matter but usually folks don’t speak about such issues. To the next! Best wishes!!

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