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Children’s right to protect their genetic information from DNA tests: SC

  • Published
    22nd Feb, 2023
Context

Supreme Court bench hearing a case against the dispute between parents (for divorce/child custody) mentioned that a child should not be lost in its search for paternity and also added that a child’s genetic information is part of his fundamental right to privacy.

About

About the Judgement:

  • The Supreme Court has held that children cannot be mechanically subjected to DNA tests in each and every case between warring parents as a shortcut to establishing proof of infidelity.
  • It also added that family courts adjudicating between warring parents should order DNA tests only as a last resort.

Court’s argument supporting Child’s 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.
  • Children are not to be regarded as material objects and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. 
  • 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.
  • Mechanical orders allowing DNA tests also harm the reputation and dignity of the mother.

Laws related to DNA tests:

  • Section 112 of Indian Evidence Act: The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Power to ask for evidence:

  • The Supreme Court in Sharda vs. Dharmpal has held that a matrimonial court has the power to order a person to undergo a medical test. Such an order would not be in violation of the right to personal liberty under Article 21 of the Constitution.
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