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Home (/) / Articles (/articles) / Is The Consent Of A Minor Victim Of...

Is The Consent Of A Minor Victim Of Rape Required For

DNA Testing Of Products Of Conception (PoC) Or Of The
Baby Born As A Result Of The Assault?
Ranu Tiwari & Swagata Raha
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17 Feb 2024 5:28 PM

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The article deals with consent requirements for a DNA test of a child or products
[1]

of conception (PoC) of a minor victim of rape in two situations - a. As part of

medical examination for offences under the POCSO Act and rape and b. As part of
declaration of a surrendered child legally free of adoption under the Adoption
Regulations, 2022, by the Child Welfare Committee.

A. Relevant Legal Framework

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Requirement of Consent

The procedure for medical examination of a victim of rape and/or sexual offences
has been laid down in Section 164A of the Code of Criminal Procedure, 1973
(Cr.P.C). As per Section 164A(1), Cr.P.C., medical examination of a woman victim
of rape shall be conducted by a Registered Medical Practitioner (“RMP”) or any
other practitioner with the consent of the woman or that of a person competent to
[2]

consent on her behalf. Collection of material from the person of the woman for
[3]
DNA profiling is a part of such medical examination. Further, the medical
[4]

examination report should expressly record that such consent has been obtained.
It is also clarified that “nothing in this section shall be construed as rendering
lawful any examination without the consent of the woman or of any person
[5]

competent to give such consent on her behalf.” Section 184 of the Bhartiya
Nagarik Suraksha Sanhita, 2023, that has been recently passed, but is yet to come
[6]

into force, is the same as Section 164A, Cr.P.C.

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Section 27(1), POCSO Act states that the medical examination of a victim under
the POCSO Act has to be conducted in accordance with Section 164A, Cr.P.C.
Therefore, the standards related to consent prescribed under Section 164A,
Cr.P.C, will apply with equal force in cases of minor victims under the POCSO Act,
2012.
Consent of rape victim for medical examination under MoHFW Guidelines

The consent requirements are further elaborated upon in the Ministry of Health
and Family Welfare, Guidelines & Protocols Medico-Legal Care For
Survivors/Victims Of Sexual Violence, 2013 (“MoHFW Guidelines”). It emphasizes
upon taking informed consent of the victim for all purposes of medical
[7]

examination such as “examination, sample collection for clinical and forensic

[8]

examination, treatment and police intimation.” . The consent form must be signed
by the person undergoing the examination when they are above 12 years of age.
For a child below 12 years, the consent must be taken from the parent or guardian
of the child. The Guidelines also recognise the right to refuse the medical
[9]

examination or any part of it and such refusal must be documented. Lastly, it

states that only in life threatening situations, the doctor may initiate treatment
[10]
without obtaining consent in view of Section 92, Indian Penal Code, 1860 (“IPC”).

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'Guardian' under JJ Act

The term guardian is defined under Section 2(31), Juvenile Justice (Care and
Protection) Act, 2015 as follows:

“guardian” in relation to a child, means his natural guardian or any other person
having, in the opinion of the Committee or, as the case may be, the Board, the
actual charge of the child, and recognised by the Committee or, as the case may
be, the Board as a guardian in the course of proceedings;”

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Personal law of the child will have to be considered while identifying the natural
guardian. For instance, in the context of a Hindu child, the Hindu Minority and
Guardianship Act, 1956 will apply, as per which the father and after him, the mother
[11]

is the natural guardian of a minor. If the child is born outside of wedlock, the
mother is the natural guardian. Under Muslim Personal law, the father is
recognised as the natural guardian of a minor.

In the context of a child in need of care and protection who is also a victim under
the POCSO Act, the provisions of the JJ Act, 2015 will also have to be taken into
consideration if the natural guardian is dead, cannot be found or traced, or is found
unfit or incapacitated to care for and protect the safety and well-being of the child.
In such circumstances, the CWC can recognise the person having the actual
charge of the child as a guardian for the purpose of giving consent for medical
procedures, bearing in mind that consent by a child above the age of 12 years is
recognised under the MOHFW Guidelines.

B. DNA Testing in the Context of Adoption

It is seen that in cases where a minor victim under the POCSO Act surrenders a
child, a DNA examination is insisted upon before the baby is declared legally free
for adoption. In this context, Regulation 39 of the Adoption Regulations, 2022
states:

“39. Child Welfare Committee―The Child Welfare Committee shall take actions as
provided in regulations 6 and 7 and as provided in rule 18 and 19 of the rules.

Explanation: Further for removal of doubt, it is hereby clarified that, in cases where
a child is willingly surrendered by the biological mother, the child being born out of
non-consensual sexual relations or where cases have been registered under the
Protection of Children from Sexual Offences Act or Indian Penal Code, the Child
Welfare Committee is obliged to issue an order clearing the child legally free for
adoption within the stipulated period within which the Dioxyribo Nucleic Acid
(DNA) sample collection should be completed to avoid undue harassment to the
families who adopt the children in such cases.”

It must be noted that Regulation 39 of the Adoption Regulations does not vest the
CWC with the power to order a DNA test. It merely states that the conduct of such
a test should be completed within the period taken by the CWC to declare a child
legally free for adoption. The overriding framework related to the conduct of
medical examination and the collection of material for DNA testing is Section
164A, Cr.P.C. As outlined in Section A above, consent is essential for the conduct
of a medical examination of a victim of rape, including child victims under the
POCSO Act. If, for instance, a woman or parent/guardian, in case of a child, does
not provide consent for DNA testing of the baby at the time of surrender, the CWC
cannot pass an order to override this decision.

C. Relevant judicial decisions

Decisions by both the Supreme Court and the High Court emphasize consent in
cases of collection of forensic evidence from the victim. In rape cases involving
pregnancy, the courts have noted that paternity has no relevance in establishing
the guilt of the accused and the victim cannot be compelled to undergo DNA
testing or do the same for her child.

[12]
In the landmark case of Goutam Kundu v. State of West Bengal, in a
maintenance petition under Section 125, Cr.P.C., to ascertain paternity of the
respondent, the Supreme Court held that “no one can be compelled to give a
[13]
sample of blood for analysis”. In Aparna Ajinkya Firodia v. Ajinkya Arun Firodia,
the Supreme Court highlighted that paternity related questions have a great impact
on the identity of a child and may even lead to identity crisis in children when DNA
tests are routinely ordered in cases where the question of paternity is merely
incidental to the main issue.

[14]
In Swapan Mondal v. The State, a conviction and order of sentence passed by the
Special Judge (POCSO), Andaman and Nicobar Islands, Port Blair under the
POCSO Act was under challenge. One of the contentions raised by the defence
was that the victim refused to give blood samples for DNA profile test for
establishment of the paternity of her baby. The Calcutta HC dismissed the said
contention and upheld the conviction. It observed that as the case was not
concerned with the paternity of the child, the victim's refusal for DNA profiling
[15]
would not be fatal to her case. Similarly, in Dilesh Nishad v. State of Chattisgarh,
the two appellants challenged the order of conviction for rape under the IPC and
POCSO Act. They also filed an application for conducting a DNA test of themselves
and the victim as also the victim's newly born baby. The Chhattisgarh HC rejected
the application for the DNA test and upheld the conviction. It observed that the
DNA testing of the victim's child would be violative of the fundamental right to
privacy of the infant.

However, in departure from the other decisions, the Madras HC took a different
[16]
view in Saranya v. State and Ors. wherein the Madras HC was asked to decide if
a criminal court can direct a prosecution witness and her child to subject
themselves to DNA profiling along with the accused. In this case, the Public
Prosecutor filed a petition before the trial Court for a direction to the minor victim
and her child to undergo DNA profiling along with the accused no. 1. Accused no. 1
agreed to undergo the DNA profiling, but the minor victim engaged a counsel and
filed her objections for subjecting herself and her child to DNA analysis. The trial
court allowed this petition which led to the minor victim approaching the High
Court to challenge the same. The Madras HC noted the coercive powers to allow
[17]
the petition on the basis of Section 349, Cr.P.C. It also relied on Goutam Kundu,
[18]

Sharda v. Dharmpal and Bhabani Prasad Jena v. Orissa State Commission for
[19]

Women , and noted the eminent need of arriving at the truth by subjecting the
minor victim and her child to DNA profiling:

“57. In the case at hand, it is not the paternity of the child that is in issue. The issue
before this Court is whether Manikandan [A1] has committed an offence under the
POCSO Act … One has to see the picture on a larger canvas and if so seen, there
can be no doubt that the harm that would befall the administration of criminal
justice is far greater, if witnesses like "X" and her child cannot be subjected to DNA
profiling. The harm that would befall if such a power is not recognised in the trial
Court will be far greater, because it will be easier for people to prey upon minor
girls from downtrodden communities like predators and force them to turn turtle in
the witness box.”

In the adoption context, in a recent case, Surender Vijay Paswan v. State of

[20]
Maharashtra, the Bombay High Court while granting bail to an accused in a rape
case under POCSO Act and the IPC, noted that the DNA test of the victim of the
child after being given in adoption, “may not be in the interest of the child and
future of the child”. The case was at the investigation stage and it was argued by
the applicant that the DNA test of the child has not been submitted. The
Investigation Officer, during the hearing then revealed that the child had been given
in adoption and the concerned institution is not disclosing the identity of the
parents. The court acknowledged the difficulty and made the above observation.

Based on the statutory provisions and judgments, it emerges that collection of

products of conception or samples of an infant for DNA examination can be done
only with the consent of the victim or a person on behalf of the victim. Since the
MOHFW Guidelines recognise consent of persons above 12 years, a minor above
12 years can provide or withhold consent for DNA examination of self or their
child. While a court may order the conduct of a DNA test, the standards laid down
by the Supreme Court with respect to the balance between the privacy of the
parties concerned and whether the test is eminently needed to arrive at a just
decision have to be adhered to. It is also significant to note that several courts
have held that in rape cases involving pregnancy, paternity has no relevance in
establishing the guilt of the accused and the victim cannot be compelled to
undergo DNA testing or subject her child to such a test. With respect to DNA
testing of a surrendered child of a child victim under the POCSO Act or the IPC, the
consent framework remains the same. It is also clarified that CWC does not have
the right to order a DNA test to declare a child legally free for adoption.

Ranu Tiwari is a Legal Researcher and Swagata Raha is a Director-Research at

Enfold Proactive Health Trust.. Views are personal.

[ ]
[1]
In sexual violence cases, DNA extracted from PoC can be used for DNA profiling
for identification of the accused/establishing paternity. See - Modi: A Textbook of
Medical Jurisprudence and Toxicology, 27th Edn, 32.2. Rape and UNFPA, Public
Health Department and National Health Mission, Government of Maharashtra,
Answers to Frequently Asked Questions by Medical Professionals During Medical
Examination of Survivors and Accused of Sexual Violence (2017), p. 14,
https://india.unfpa.org/sites/default/files/pub-pdf/faq_book_final_design.pdf
(https://india.unfpa.org/sites/default/files/pub-pdf/faq_book_final_design.pdf).

[2]
Section 164A(4) and 164A(7) Cr.P.C, 1973.

[3]
164A(2)(iii), Cr.P.C., 1973.

[4]
164A(4), Cr.P.C., 1973.

[5]
164A(7), Cr.P.C., 1973.

[6]
184. Medical examination of the victim of rape. (1) Where, during the stage when
an offence of committing rape or attempt to commit rape is under investigation, it
is proposed to get the person of the woman with whom rape is alleged or
attempted to have been committed or attempted, examined by a medical expert,
such examination shall be conducted by a registered medical practitioner
employed in a hospital run by the Government or a local authority and in the
absence of such a practitioner, by any other registered medical practitioner, with
the consent of such woman or of a person competent to give such consent on her
behalf and such woman shall be sent to such registered medical practitioner
within twenty-four hours from the time of receiving the information relating to the
commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent, shall, without
delay, examine her person and prepare a report of his examination giving the
following particulars, namely:— (i) the name and address of the woman and of the
person by whom she was brought; (ii) the age of the woman; (iii) the description of
material taken from the person of the woman for DNA profiling; (iv) marks of injury,
if any, on the person of the woman; (v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the
person competent to give such consent on her behalf to such examination had
been obtained.

(5) The exact time of commencement and completion of the examination shall
also be noted in the report.

(6) The registered medical practitioner shall, within a period of seven days forward
the report to the investigating officer who shall forward it to the Magistrate
referred to in section 193 as part of the documents referred to in clause (a) of sub-
section (6) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination
without the consent of the woman or of any person competent to give such
consent on her behalf.
[7]
Ministry of Health and Family Welfare, Guidelines & Protocols Medico-Legal Care
For Survivors/Victims Of Sexual Violence, 2013, P. 16, 23 and 24.

[8]
Ministry of Health and Family Welfare, Guidelines & Protocols Medico-Legal Care
For Survivors/Victims Of Sexual Violence, 2013, P. 24.

[9]
Ministry of Health and Family Welfare, Guidelines & Protocols Medico-Legal Care
For Survivors/Victims Of Sexual Violence, 2013, P. 25.

[10]
Ministry of Health and Family Welfare, Guidelines & Protocols Medico-Legal
Care For Survivors/Victims Of Sexual Violence, 2013, P. 25.

[ ]
[11]
Section 6. Natural guardians of a Hindu minor—The natural guardians of a Hindu
minor; in respect of the minor's person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years
shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother,

and after her, the father;

(c) in the case of a married girl—the husband: Provided that no person shall be
entitled to act as the natural guardian of a minor under the provisions of this
section—

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit
(vanaprastha) or

an ascetic (yati or sanyasi).

Explanation.—In this section, the expressions “father” and “mother” do not include
a step-father and a step-mother

[12]
1993 AIR 2295.

[13]
2023 SCC OnLine SC 161.

[14]
CRA No. 015 of 2019 decided by the Calcutta HC on 29.06.2021. Similar
approach was taken by the Jharkhand High Court in Afan Ansari v. The State of
Jharkhand, W.P. (Cr.) No. 536 of 2022 on 20.12.2022 and the Allahabad HC in
Gulafsa Begum v. State of U.P. CRIMINAL REVISION No. - 477 of 2021 on
31.12.2021. And, also by the Supreme Court of India in an order dealing with DNA
testing of the child of a minor rape victim. See - Cannot order DNA testing of child
in rape case just at the drop of hat: SC, The Print (12 July, 2022),

https://theprint.in/india/cannot-order-dna-testing-of-child-in-rape-case-just-at-the-
drop-of-hat-sc/1036035/ (https://theprint.in/india/cannot-order-dna-testing-of-
child-in-rape-case-just-at-the-drop-of-hat-sc/1036035/) (the original order could
not be found).
[15]
Criminal Appeal No.1400 of 2019, Chhattisgarh HC, decided on 17.8.2023.

[16]
Crl. O.P. No. 21706 of 2016, decided by the Madras HC on 11.11.2016.

[17]
"349. Imprisonment or committal of person refusing to answer or produce
document.-

If any witness or person called to produce a document or thing before a Criminal

Court refuses to answer such question as are put to him or to produce any
document or thing in his possession or power which the Court requires him to
produce, and does not, after a reasonable opportunity has been given to him so to
do, offer any reasonable excuse for such refusal such Court may, for reasons to be
recorded in writing, sentence him to simple imprisonment or by warrant under the
hand of the Presiding Magistrate or Judge commit him to the custody of an officer
of the Court for any term not exceeding seven days, unless in the meantime, such
person consents to be examined and to answer, or to produce the document or
thing and in the event of his persisting in his refusal he may be dealt with
according to the provisions of section 345 or section 346."

[18]
AIR 2003 SC 3450.

[19]
(2010) 8 SCC 633.

[20]
Criminal Bail Application No. 1979 OF 2022, decided by the Bombay HC on
10.11.2023.
 Tags Consent (https://www.livelaw.in/tags/consent)

Minor (https://www.livelaw.in/tags/minor)

Victim Of Rape (https://www.livelaw.in/tags/victim-of-rape)

Products Of Conception (PoC) (https://www.livelaw.in/tags/products-of-conception-poc)

DNA Testing (https://www.livelaw.in/tags/dna-testing)

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