Forcefully Subjecting Individual To DNA Testing Is Grave Intrusion Of Privacy: Supreme Court

The appeal before the Apex Court challenged the judgment of the Madras High Court whereby the High Court directed the appellant to appear before the Dean, Government Rajaji Hospital, Madurai, for the collection of blood samples for DNA profiling as ordered by the Single Judge.

The Division Bench of Justice Prashant Kumar Mishra and Justice Vipul M. Pancholi held, “Forcefully subjecting an individual to DNA testing constitutes a grave intrusion upon privacy and personal liberty. Such an encroachment can be justified only if it satisfies the threefold test of legality, legitimate State aim, and proportionality.”

"A direction for DNA testing must have a direct and demonstrable nexus with the offences under investigation. In the absence of such nexus, compelling a person to undergo DNA profiling, amounts to unwarranted intrusion into bodily autonomy and privacy, contrary to the safeguards implicit in Articles 20(3) and 21 of Constitution of India”, it added.

Advocate Pulkit Tare represented the Appellant, while AOR Ankur Prakash represented the Respondent.

Factual Background

The first Respondent married a man in 2001 who was suffering from a skin ailment. The respondent’s husband approached the appellant, a doctor, for treatment. The appellant successfully treated his condition, which led him to confide in the appellant regarding his lack of progeny. The respondent’s husband requested the appellant to refer his wife to a Gynaecologist (appellant’s first wife), for the necessary treatment. However, instead of referring the respondent to the Gynaecologist, the appellant developed physical relations with her, resulting in the birth of a child in 2007. When the child was approximately one and a half years old, the appellant continued his extramarital relationship with the respondent. Upon learning this, the respondent’s husband allegedly deserted her. The Respondent asked the appellant to marry her, but he refused, and a quarrel ensued.

The respondent appeared on a TV programme publicly narrating her complaint which led to the registration of the F.I.R. against the appellant for offences under Sections 417 and 420 of the Indian Penal Code, 1860 and Section 4(1) of the Tamil Nadu Women Harassment Act. The Police moved an application before the Judicial Magistrate seeking directions to send the appellant, respondent and the child for DNA profiling. Directions were issued to the appellant but he failed to comply with the said order. After the first round of litigation, pursuant to the remand by the Division Bench, the Single Judge considered the matter afresh and held that DNA profiling of the parties was essential for the investigation in the case. The appellant preferred a Writ Appeal but the same was dismissed by the Division Bench. The appellant was thus directed to appear before the Dean, Government Rajaji Hospital, for the collection of blood samples. Aggrieved thereby, the appellant approached the Apex Court.

Reasoning

The Bench noted that the dispute arose from a complaint registered under Sections 417 and 420 of the IPC and Section 4(1) of the Tamil Nadu Women Harassment Act. The Respondent sought to establish the charges of cheating and harassment by demonstrating that the appellant was the biological father of her child. The Bench explained that the presumption under Section 112 of the Evidence Act operates as “Conclusive Proof” of the legitimacy of a child born during the subsistence of a valid marriage, by presuming that the parents had access to each other at the relevant time.

Coming to the aspect of DNA Profiling, the Bench noted that the Apex Court has consistently held that DNA testing cannot be ordered as a matter of course and must be subject to stringent safeguards to protect the dignity of individuals and the legitimacy of children born during wedlock. On the facts of the case, the Bench noticed the complete absence of any specific pleading by the respondent establishing non-access between herself and the respondent’s husband during the period relevant to the conception of the child. As per the Bench, this omission was not merely procedural but went to the root of the matter. “The presumption under Section 112 of the Evidence Act operates in favour of legitimacy, and proof of non-access at the relevant period is the only mode of rebuttal recognised by law. In absence of specific plea of nonaccess, supported by strong and unambiguous evidence, the foundation for displacing the statutory presumption simply does not exist”, it added.

The Bench found no insufficiency of evidence to dislodge the presumption of legitimacy. The child was born during the subsistence of a valid marriage, and the documents on record consistently recorded respondent’s husband as the father. There was no pleading whatsoever by the respondent alleging non-access between herself and her husband during the period of conception. As per the Bench, in the present matter, the balance weighed decisively against ordering DNA testing. Such a direction, according to the Bench, would constitute a significant intrusion into the privacy and dignity of both, the appellant and the child, implicating the fundamental right to privacy guaranteed under Article 21 of the Constitution of India.

Noting the appellant’s consistent refusal to submit to DNA testing, the Bench stated that such refusal was protected by the principles articulated in Goutam Kundu vs. State of West Bengal and Another (1993). The Bench stated that in the eyes of the law, the child was the legitimate offspring of the respondent’s husband, as the statutory presumption under Section 112 of the Evidence Act remained unrebutted. “The legal status of the child cannot be altered by mere assertions or by subjective perception of respondent No.1”, it mentioned.

The Bench further held, “Without first displacing the statutory presumption of legitimacy under Section 112 of the Evidence Act by leading positive and cogent evidence of non-access, respondent No.1 cannot seek refuge in the drawing of an adverse inference against the appellant under Section 114 of the Evidence Act. Unless the presumption under Section 112 is first rebutted, no occasion arises for directing a DNA test. Conversely, where the prerequisites for ordering such a test are not satisfied, the question of drawing any adverse inference from the appellant’s refusal to undergo it does not arise at all.”

The Bench was of the view that the offences alleged, falling under Sections 417 and 420 of the Indian Penal Code, 1860 and Section 4(1) of the Tamil Nadu Women Harassment Act, are neither of the nature nor of a circumstance that warrant recourse to DNA analysis. “The High Court’s invocation of Sections 53 and 53A of the Code of Criminal Procedure, 1973, rests on a misconstruction of their contextual ambit; these provisions contemplate medical examination only where such an examination may directly yield evidence relating to commission of the alleged offence”, the order read.

Setting aside the impugned judgment passed by the High Court, the Bench allowed the Appeal.

Cause Title: AB v. PA (Neutral Citation: 2025 INSC 1304)

Appearance

Appellant: Advocates Pulkit Tare, D.Kumanan, Sheikh F. Kalia, AOR Suvendu Suvasis Dash

Respondent: AOR Ankur Prakash, AAG Balaji Subramanian, AOR Sabarish Subramanian, Advocates Vishnu Unnikrishnan, Arpitha Anna Mathew, Veshal Tyagi, Jahnavi Taneja, K.s.badhrinathan, Akash Kundu, Danish Saifi

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