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Home (/) / Top Stories (/top-stories) / DNA Tests Can Violate Privacy...

DNA Tests Can Violate Privacy Right, Can't Be Directed

(
As Matter Of Course; Section 112https://www.slsnagpur.edu.in/?
Evidence Act Protects
utm_source=livelaw&utm_medium=banner&utm_
Children : Supreme Court
Awstika Das
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24 Oct 2022 12:25 PM supreme-
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aw-
The Supreme Court recently set aside a decision of a High Court allowing DNA
ams/latest-
preme-
testing to determine the paternity of two children to verify a claim made by their
urt-
mother that she had been "forced to cohabit and develop a physical relationship"
dgments-
r-
with her brother-in-law. This appeal had arisen out
w-
of a dowry harassment case in
which the complainant had lodged a first information report against her husband
aminations-
cqs-
and his brother under Sections 498A, 323, and 51779)
354 and other ancillary provisions
of the Indian Penal Code, 1860. The Division Bench, allowing the appeal preferred
by the accused, held that the trial court had accepted the application of the
complainant "mechanically". By this order, which eventually came under the
scanner of the apex court, the trial court had directed the appellants and the
supreme-
children "to give blood samples to a specified urt/supreme-
hospital for obtaining an expert
urt-
opinion on DNA fingerprint test". The Supreme Court Bench, comprising Justices
test-
Aniruddha Bose and Vikram Nath, held – minal-
w-
dgments-
Also Read - Arvind Kejriwal Case | Finding Of Proceedsbruary-
Of Crime Irrelevant If Money
24-
Laundering Case Is Made Out: ED To Delhi High Court (/high-court/delhi-high-court/delhi-
51775)
high-court-proceeds-of-crime-irrelevant-if-money-laundering-case-made-out-ed-arvind-
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"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. We, accordingly, allow the appeal and
set aside the judgment of the High Court."

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Before travelling in appeal to the top court, the revisional jurisdiction of the High
Court had been invoked. Upholding the impugned order, the High Court had held
that the DNA test was permitted under Sections 53, 53A and 54 of the Criminal
Procedure Code, 1973 and did not amount to testimonial compulsion. The
Supreme Court took a different stand on the basis of two factors –

First, neither were the children whose blood samples were directed to be taken
parties to the proceeding, nor were their status required to be examined in the
complaint. The Court observed that this raised doubt on "their legitimacy of being
borne to legally wedded parents" and such directions, if carried out, had the
potential of "exposing them to inheritance related complication". It was also noted
that Section 112 of the Evidence Act, 1872 gave a protective cover from
allegations of this nature.

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Second, the paternity of the children was not in question in the proceedings. The
Court observed that the substance of the question was whether the offences
under the aforesaid provisions had been committed and the paternity of the two
children was only collateral to the allegations on which the criminal case was
otherwise founded.

These factors, the Court remarked, had been completely ignored by the trial court
and the revisional court, who proceeded "as if the children were material objects
who could be sent for forensic analysis." In arriving at this finding, the Court placed
heavy reliance on Ashok Kumar v. Raj Gupta and Ors. [(2022) 1 SCC 20], in which a
Coordinate Bench of the top court had endorsed a "sparing use" of the DNA
fingerprint test.

Also Read - Accused Not Obligated To Lead Evidence Of His Innocence Unless Specified By
Law: Supreme Court (/supreme-court/accused-not-obligated-to-lead-evidence-of-his-
innocence-unless-specified-by-law-supreme-court-254174?utm_source=internal-
artice&utm_medium=also-read)

Case Title

Inayath Ali & Anr. v. State of Telengana & Anr. [SLP (Crl) No. 4946/2017]
Citation : 2022 LiveLaw (SC) 869

Headnotes

DNA Test for paternity – Supreme Court sets aside HC direction for DNA test of
children in a matrimonial disputes - SC cites Right to Privacy – 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 – Important question is not only whether it
would amount to testimonial compulsion – Also encompasses right to privacy –
Test could be prejudicial to the privacy rights of persons subjected to it – May
also be prejudicial to future of children subjected to the test (Para 9)

Indian Evidence Act 1872- Section 112 -DNA test - SC sets aside direction for
DNA test of children - notes that children were not parties to the proceedings -the
test will have the potential of exposing them to inheritance related complication.
Section 112 of the Evidence Act, gives a protective cover to children from
allegations of this nature (Para 7)

Click Here To Read/Download Order (https://www.livelaw.in/pdf_upload/869-

inayath-ali-anr-v-state-of-telengana-15-sep-2022-440784.pdf)
 Page 1 of 3

2022 LiveLaw
IN THE(SC)SUPREME
869
CRIMINAL
COURT OFAPPEALLATE
INDIA
ANIRUDDHA
JURISDICTION BOSE; J.,
CRIMINAL APPEAL VIKRAMSeptember
NATH;
NO. J.
1569/2022 (Arising out of
the SLP INAYATH ALI &15, 2022
ANR.
(Crl.) No.4946/2017) versus STATE OF
DNA Test for paternity – &Supreme
TELANGANA ANR. Court sets aside HC
children
direction infora matrimonial
DNA test of disputes - SC cites Right to Privacy –
something
Merely because is permissible under the law cannot be directed as a
be performed
matter ofautonomy
course, particularly
to when a direction to that effect would
physical
be invasive to the of acompulsion
person – Important question is not only
amount
whether to testimonial
it would – Also encompasses right
be
to prejudicial
privacy – to the
Test couldprivacy rights of persons subjected to it –
to
Mayfuture
alsoof bechildren
prejudicial subjected to the
test. (Para
Indian Evidence9) Act 1872; Section 112 - DNA test - SC sets
test
aside ofdirection
children for - notes
DNA that children were not parties to the
have the potential
proceedings - the of
test exposing them to inheritance related
will a protective
of the Evidence
complication. Act,
Section gives
112 cover to children from
nature.
allegations of this
(Arising
(Para 7) out of the impugned Judgment and Order dated
Judicature at Hyderabad for the State of Telangana and the
20.02.2017
Case No. passed by the Hon’ble High Court of
State
For of Andhra Pradesh in Criminal Revision
Appellant(s)
2246 of 2014) Mr. Shwetank Sailakwal, Adv. Mr. Tanmaya
Ravindra
Agarwal, Vikram
AOR Mr. Wrick Chatterjee, Adv. Adv.
Mr. Mr. S. Udaya
For Respondent(s)
Singh, Adv. AOR Mr. Ms. Bina Madhavan,
G. N. Reddy,
Kumar Sagar, AOR Ms. Sweena Nair, Adv. Mr.
Ravi Shankar, Adv. ORDE
Leave R
2. Heard
granted.
learned counsel appearing for the parties. The
of an FIRproceeding
present lodged by the arisesdefactocomplainant
outSections 498A, (respondent no.2)
pertaining
followed by tochargesheet
offences under 323, 354, 506 and
1860
509 (the
of Indian “Code”).
Penal The
Code, FIR was made against the appellants,
husband
thethe
appellantand the first appellant
no.controversy
2 being being her brother-in-law
herinvolved
to nature
(husband’s of
brother). Having regard in this proceeding, we
identity
have in
avoided this judgment
revealing herand direct the Registry to mask her
mainly
identity related
with to dowry allegations as well as harassment and
on her by
physical her“XX”.
violence husbandHer complaint
and her in-laws. The Trial Court had
committed
several
proceeded witnesses case andAct, 1872when
were
in theEvidence examined, the complainant filed
45
an of the Indian
application undertestSection with a prayer for direction
for
for DNA fingerprint
obtaining comparing blood samples of two
no.2
minor with thatexpert
daughters of the
of
opinion
firstrespondent
the appellant. The basis of this
was forced was
application to cohabit
her and develop
allegation a physical relationship with
thatrelationship.
she
two
the children were
appellant no. 1born
and out of that
theand The Trial Court
along with
allowed her the appellants
prayer andan she, the children, were directed to
hospital for obtaining
give blood samples to a specified expert opinion on
DNA fingerprint test.
1

Page 2 of 3

3. The appellants invoked the revisional jurisdiction of the High

Hyderabad
Court for the State of Telangana and the State of Andhra
of the of
Pradesh
Judicature
said at revisional
Order. invalidation
seeking The application, however, was
that such
dismissed.Code,DNA fingerprint
The High Court test
heldwas permitted under Sections
Procedure
53, 53A andthat 54 of 1973. It
the Criminalwas observed in the judgment of the
authorities,
High Court, relyingit does
on not tantamount to testimonial
several
High Court that
compulsion. in the
It was alsoevent
heldthe by directions
the were not complied
adverse
with, theinference.
Court hadThe order
to draw anof the Trial
Court
4. We was,have thus,
been upheld.
taken through the FIR and the chargesheet as
chargesheet
well as thewere by the learned counsel for the parties. The
additional
indicated,
allegations, whichprimarily
we have in respect of dowry related offences
to
butoutraging
later on the modesty
offence thealready
ofrelated respondent no.2 was added.
complainant
Paternity of the children of therelated to the allegations, out of
were not directly
arises.
which the present appeal
5. In the case of Ashok Kumar v. Raj Gupta and Ors. [(2022) 1
Coordinate
SCC Bench,
20] decided bysparing
a use of the DNA fingerprint test was
declaration
opined. This ofwas
ownership
a suit for of certain property and the
plaintiff
defendants was not
hadcasethe
raised son of
the pleathe original
plea theowner
that made thereof, from
the
whom title.
heInclaimed
that to also,
have derivedwas for conducting a
of this
DNA Court
test. Theheld, referringBench
Coordinate to, inter-alia, Section
“15. of
112 DNA theis1872
uniqueAct:- to an individual (barring twins) and can be
trace familial
used to identify linkages
a person's or even reveal sensitive health
identity,
compelled
information. toWhether
provide aa sample
person for DNA
can be in such matters can
of
alsoproportionality
be answered laid down
considering in the
the unanimous
test(Aadhaar-5 decision of this
J.)
Courtv. Union
in K.S.of India
Puttaswamy [K.S. Puttaswamy
(Aadhaar5 J.) v. Union
the right
of India, to privacy
(2019) 1 SCC has been declared a constitutionally
therefore examine the 1], wherein
proportionality of the legitimate aims
d i h i di h C h ld

Tags Supreme Court (https://www.livelaw.in/tags/supreme-court)

Justice Aniruddha Bose (https://www.livelaw.in/tags/justice-aniruddha-bose)

Justice Vikram Nath (https://www.livelaw.in/tags/justice-vikram-nath)

DNA Test (https://www.livelaw.in/tags/dna-test)

 Paternity (https://www.livelaw.in/tags/paternity)

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act)

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