2 weeks ago
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The Kerala High Court has directed sessions court and other subordinate courts not to entertain applications of prosecutions seeking DNA samples of adopted children of rape survivors and victims in Protection of Children from Sexual Offences Act (POCSO) cases in connection with the the prosecution of such cases.
Justice K. Babu passed the verdict recently in a suo motu case initiated on the basis of a report by advocate Parvathy Menon, project coordinator, Victims Rights Centre, Kerala State Legal Services Authority (KELSA) against the practice of various courts ordering collection of blood samples of rape survivors and victims in POCSO cases. Parvathy Menon, who was also an amicus curiae in a case, submitted that DNA samples were being collected to strengthen the prosecution case of rape which could be successfully proved by positive evidence. The proof of paternity would not help a court in deciding whether the accused committed rape or not.
The court while also issuing guidelines in this regard observed that where blood samples are ordered to be collected for DNA tests from adopted children after they are given in adoption, it may imbalance their emotional status, which will only defeat the purpose of the divine concept of adoption. The court added that rape as defined in section 375 of Indian Penal Code (IPC) and penetrative sexual assault as defined in the POCSO Act did not demand that the paternity of the child born to rape victims should be proved to establish the offence. When there is a conflict between the right to privacy of a person not to submit himself forcefully to medical examination and the duty of the court to get the truth, the court must exercise its discretion only after balancing the interest of the parties and after due consideration whether DNA test is essentially needed to arrive at a just decision.
DNA test before adoption
The court also ordered the child welfare committees to see that DNA samples of children given in adoption are taken before the completion of the process of adoption. The court also directed that all the agencies/authorities involved in the adoption process shall ensure that the confidentiality of adoption records is maintained except as permitted under any other law for the time being in force.
The court ordered that even in cases where the children were not given in adoption the court shall consider the request for a DNA test of the children of the victim only after assessing the principle of “eminent need” and doctrine of proportionality”.
The court observed that an adopted child cannot at any point of his/her growth be violated of his/her privacy. The child would have blended so well with the adopted family that a sudden revelation that he/she is an adopted child and that too of a rape victim can imbalance his/her emotional status and can result in them exhibiting behavioural disorders and aberrations. This exercise of subjecting the child to DNA test will only defeat the purpose of the divine concept of adoption.
