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The Lucknow bench of Allahabad high court has held that a rape survivor cannot be forced to allow her baby take a DNA test to determine his/her paternity.

The revision plea has been filed by the mother of the victim. The victim was aged about 14 when she was raped as a result of which she became pregnant. The Appellate court had observed that the DNA Test will determine the paternity of the child and would clarify the issue of whether she was raped by the accused.

It has been submitted that such DNA Test cannot be performed without consent of the prosecutrix. The issue involved in the prosecution was not whether her child was son of the accused. The issue was whether the victim was raped by the accused . A DNA test alone cannot answer that question.

The prosecution relied on the Supreme Court decision in Goutam Kundu Vs. State of West Bengal & Another, wherein the Court held:

• that courts in India cannot order blood test as a matter of course;
• wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
• There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
• The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
• No one can be compelled to give sample of blood for analysis.

In the case at hand Justice Sangeeta Chandra observed that “the learned Additional Sessions Judge has misdirected his energies.” The Court noted that a fundamental point was amiss. The Court stated the question before the learned Trial Court was not whether the child that was born to the victim was the child of the accused. There was no question for determining the paternity of the child, the question involved in the case was whether rape was committed on the vicitm by the accused.  

“There was no reason for the prosecutrix to let her child undergo DNA Test,” the Court noted.

Thus the court allowed the revision petition.

Gulafsa Begum v. State of Uttar Pradesh