Upholding Section 112 Presumption, Supreme Court Restricts Compulsory DNA Profiling in Criminal Cases to Protect Privacy and Legitimacy

Drawing upon the legal principles, the Supreme Court examines the complex interplay between DNA profiling, the constitutional right to privacy, and the statutory presumption of legitimacy and set aside a High Court order compelling the appellant to undergo DNA profiling in a criminal case under Sections 417, 420 IPC.

Case Background: The matter originated from a dispute between Respondent No. 1 (Kamar Nisha) and the Appellant (R. Rajendran), a doctor. Respondent No. 1 was married to one Latheef since 2001 and that the Appellant had developed an extra-marital relationship with the Respondent no.1 after he successfully treated her husband. This relationship allegedly resulted in the birth of a child in 2007 while the extra-marital relationship continues, and after the Respondent no.2 was deserted by her husband, she lodged a First Information Report (FIR) against the doctor for offenses including cheating and harassment.

During the investigation, the police and subsequently the High Court directed the appellant, the mother, and the child to submit blood samples for DNA profiling, deeming the paternity test essential for the investigation.

The appellant consistently challenged this direction, arguing that compulsory DNA testing infringes upon his right to privacy and that the child was born during the subsistence of a valid marriage.

The Supreme Court, upon hearing the appeal, was constrained to examine whether the High Court was justified in directing such an intrusive procedure.

On the Section 112 of the Evidence Act and its substantive safeguards, the Apex Court noted that the Sec 112 establishes a conclusive presumption of legitimacy for any child born during a valid marriage. This presumption is a substantive safeguard and a "bulwark against the casual illegitimization of children", and the offences so alleged, is Sections 417 and 420 IPC and Section 4(1) of the Tamil Nadu Women Harassment Act, does not, according to the Court, satisfies the circumstance that warrant recourse to DNA analysis.

The Court further held that the party asserting illegitimacy must present strong and unambiguous evidence establishing "non-access" between the spouses at the time of conception. The standard of proof required is higher than a mere preponderance of probabilities. Since the mother failed to establish non-access, particularly as the child's birth certificate recorded her husband (Abdul Latheef) as the father, the presumption remained unrebutted.

Refering to the principles established in case of Goutam Kundu v. State of West Bengal and in Bhabani Prasad Jena Etc vs Convenr.Sec.Orissa State Commission for Women, the Apex Court reiterated that DNA testing cannot be ordered as a matter of course and must be exercised only with utmost circumspection. A test can only be directed when it is "eminently necessary" for a just decision.

The Supreme Court also held that the forceful subjecting an individual to DNA testing constitutes a grave intrusion upon privacy and personal liberty. Such an encroachment on Article 21 rights must be justified by the threefold test of legality, legitimate State aim, and proportionality. The invasion of privacy and dignity of the appellant and the adult child far outweighed any conceivable investigative benefit in this case.

The Apex Court further emphasized that the primary criminal charges (cheating and harassment) did not inherently necessitate the ascertainment of paternity. Paternity was a collateral factor to the offenses alleged, meaning the investigation could proceed and the case could be adjudicated based on other evidence, thus failing the test of "eminent need".

1. No Adverse Inference: The appellant’s refusal to submit to DNA testing could not be used to draw an adverse inference under Section 114 of the Evidence Act, as the respondent had not yet successfully displaced the statutory presumption of legitimacy under Section 112.

In summation, the Supreme Court allowed the appeal and ruled that forced DNA testing violates the right to privacy (Article 21) unless "eminent need" is established and held that the child’s legitimacy under Section 112 of the Evidence Act remained unrebutted, as paternity was merely a collateral factor to the criminal charges, not directly relevant to proving the alleged offenses.

Coram: Justice Prashant Kumar Mishra & Justice Vipul M. Pancholi.