Test for paternity not violation to right against self incrimination:Karnataka High Court

The question as to whether conducting DNA test of a person accused of rape in order to paternity of a child born out of such crime is against fundamental right or not was examined in Karnataka High Court in a bench consisting of Justice H.P. Sandesh in the matters of Malappa@Malingaraya v. State of Karnataka W.P.No. 201162/2021 decided on 10.12.2021.

The facts of this case are that petitioner collected the victim to do coolie work at the petitioner’s land and asked her marry her and engage in sexual intercourse with her.When she denied to marry him, the petitioner repeatedly and forcibly raped her 3-4 times.He also threatened to kill her if she reveals it to anyone.Later, the victim got pregnant and her parents approached with marriage proposal to the petitioner who disagreed to marry her and denied rape allegations too.When victim was 7 months pregnant, she lodged an FIR against the Petitioner who was booked her section 504, 506, 417, and 376 of IPC.The prosecution filed an application for conducting DNA test of the Petitioner to ascertain the paternity.The petitioner filed a writ under Article 226 and 227 of Constitution for issuing a writ of certiorari to squash the order of JMFC to conduct the test.The blood sample was collected according to the order of the JMFC and report suggested that petitioner was the biological father of the child who died soon after birth.

The Counsel on behalf of the Petitioner contended that victim had married a man and collecting his blood sample was not justified.The purpose of collection of blood sample was not informed and non-consensual so the collection process was unjust and against principle of free trial and right of self incrimination under Article 20(3) of the Constitution of India. The case Selvi v. State of Karnataka and Ashok Kumar v Raj Gupta and Ors. was cited saying that DNA testing without consent is illegal.

The Counsel on behalf of the Respondent contended that the Learned Magistrate duly obtained consent before collection of blood sample and the Petitioner approached the court after expiry of limitation period, that is,  after 4 years delay, so the Petition is devoid of merits.

The Karnataka High Court upheld the sanctity of the test as not being a violation of right against self incrimination under Article 20(3) of the Constitution of India.The courts might order for DNA tests if necessary from case to case.The petition was dismissed.

Judgement reviewed by Bhaswati GoldarMalappa___Malingaraya_vs__State_of_Karnataka

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