Can't Compel Rape Survivor For Paternity Determination Test Of Child: Allahabad HC

Can't compel rape survivor to have her child undergo paternity determination test: Minor rape cases have been increasing making it unsafe for the girls in India. Is there consent of the rape survivor required for DNA tests that are conducted?

In a recent POCSO court case in front of the Allahabad High Court, a DNA test of the baby was asked in order to determine who the accused was in the rape case. However, the court held that no rape survivor can be compelled to undergo a Paternity Determination Test.

The Case

The rape survivor's mother had filed an FIR on December 17, 2017, alleging that her daughter was raped. Few suspects were arrested under IPC and POSCO Act by the police officers.

The Juvenile Justice Board, rejected the paternity determination test of the rape survivor's baby petition filed on March 25, 2021, by the child accused using it to be their defence.

The child accused appealed to POCSO court, to revise the rejection while stating that the absence of a paternity determination test would label the kid as a "bastard" and the survivor as an "unchaste lady".

Despite the presence of several rules and precedents saying otherwise, the POCSO judge issued an order for conducting a paternity determination test of the survivor's baby. The survivor's mother approached Allahabad High Court for an overturning of the order given by POCSO.

Justice Sangeeta Chandra revised the order by stating that the court can't compel rape survivors for paternity determination tests.

 "It is apparent that the learned Additional Sessions Judge has misdirected his energies. The question before the learned Trial Court was not whether the child that was born to the prosecutrix was the child of the opposite party no.2. There was no question for determining the paternity of the child, the question involved in the case was whether rape was committed on the prosecutrix by the opposite party no.2. There was no reason for the prosecutrix to let her child undergo DNA Test."

Other Minor Rape Cases in India 

A nine-year-old Dalit girl in the Delhi Cantonment area was allegedly raped and killed by four persons including a priest. They further cremated the minor girl. The two accused confessed and gave the reason "because she was a Dalit" for raping the minor girl. 

Other Paternity Tests Cases 

After the K.S Puttaswamy v. Union of India, the Right to Privacy judgment that recognised privacy as a fundamental right, the significance of consent prior to undergoing the paternity determination test has become essential.

But in certain cases, Paternity Determination Tests have been used as a tool to check the chastity of a woman like in 2020, Allahabad HC has dismissed a woman’s petition, citing previous examples from a Supreme Court hearing, which had concluded that a paternity determination test is the “most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity.”

In Shri Rohit Shekhar v. Shri Narayan Dutt Tiwari and Anr, Delhi High Court ordered a paternity determination test on the grounds that the child has the right to know his father as per international covenants. A person who was a third party to the marriage was compelled by the court to take the paternity determination test.

In a Supreme Court case, Dipanwita Roy vs Ronobroto Roy , a paternity determination test was demanded not to prove the child's paternity, but as evidence of his wife's "going astray" for getting a divorce.

Lastly,  in Kamti Devi case, the court stated that paternity determination tests should not be allowed as much as possible because the results could effectively impose a permanent stigma of illegitimacy on a child which is a public policy matter.

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Delhi: Teen Dalit Girl Allegedly Kidnapped, Raped For Resisting Forced Prostitution