Children have a right to protect their genetic information from DNA tests: SC judgment

A child should not be lost in its search for paternity, said the court, directing family courts adjudicating between warring parents to order DNA tests only as a last resort

The Supreme Court has held in a judgment that children cannot be mechanically subjected to DNA tests in each and every case between warring parents as a short-cut to establish proof of infidelity.

“Genetic information is personal and intimate,” a Bench of Justices V. Ramasubramanian and B.V. Nagarathna observed in a judgment. “It sheds light on a person’s very essence... The information goes to the very heart of who she or he is,” the judgment added, emphasising that “a child’s genetic information is part of his fundamental right to privacy.”

“Children have the right not to have their legitimacy questioned frivolously before a court of law. This is an essential attribute of the right to privacy. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses,” Justice Nagarathna, who authored the judgment, underscored.

‘Psychological trauma’

Justice Nagarathna drew attention to the rights of privacy, autonomy and identity recognised under the United Nations’ Convention on the Rights of the Child. “The Convention acknowledges the control that individuals, including children, have over their own personal boundaries and the means by which they define who they are in relation to other people. Children are not to be deprived of this entitlement to influence and understand their sense of self simply by virtue of being children,” Justice Nagarathna wrote.

The judgment said that “a child should not be lost in its search for paternity”, pointing out that details of parentage are an attribute of a child’s identity. The court highlighted the psychological trauma that a child would be forced to suffer if his or her legitimacy was put under a cloud through DNA tests.

“The plight of a child whose paternity and thus his legitimacy, is questioned would sink into a vortex of confusion which can be confounded if courts are not cautious and responsible enough to exercise discretion in a most judicious and cautious manner… Not knowing who one’s father is creates a mental trauma in a child,” Justice Nagarathna observed.

‘Last resort only’

Besides, mechanical orders allowing DNA tests would also harm the reputation and dignity of the mother, the court added.

Family courts should direct for a DNA test only in expedient situations and in the interest of justice, as a last resort, said the judgment.

The judgment came in a petition filed by a man who questioned his second child’s paternity while accusing his wife of an adulterous relationship. The apex court concluded on the facts of the case that no adverse inference could be drawn on the ground that the mother declined to subject the child to a paternity test.

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