KOCHI: The Kerala High Court has held that DNA examination of children born to rape victims who are given in adoption may cause emotional imbalance and violate their right to privacy.
Justice K Babu ordered that Pocso and other subordinate courts should not entertain applications seeking DNA examination of children given in adoption.
The court also directed child welfare committees to ensure that the DNA samples of adopted children are taken before the completion of the adoption process.
The order was issued while disposing of a suo motu case registered based on the report of the Project Co-ordinator, Victims Rights Centre, and the Kerala State Legal Services Authority regarding the violation of the privacy of adopted children by issuing orders for collecting their DNA. The report stated that the various courts in Kerala issued orders on the applications preferred by the prosecution to collect DNA of children born to rape victims.
Advocate Parvathi Menon, the amicus curiae, said that collecting DNA samples may harm the person and encroach upon his/her privacy and personal autonomy. The exercise of collecting DNA samples is done to strengthen the prosecution case of rape which can be successfully proved by evidence that the accused had sexual intercourse with the lady without her consent and the proof of paternity would not help the court in deciding the issue of whether the accused raped her.
There were instances where blood samples for DNA tests were ordered to be collected from adopted children who had attained an age of reasonable comprehension. In some cases, adopted parents would not have even divulged the fact of adoption to the child. The child would have blended so well with the family that a sudden revelation that he/she is adopted, and that too from a rape victim, can imbalance his/her emotional status and can result in them exhibiting behavioural disorders and aberrations, submitted the amicus curiae.
The court said that rape as defined in Section 375 of the 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 reach out to the truth, the court must exercise its discretion only after balancing the interest of the parties and on due consideration whether, for a just decision in the matter, DNA test is essentially needed.
The court also directed that all the agencies or 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.