'Cannot order DNA testing of child in rape case just at the drop of hat': SC

NEW DELHI: The Supreme Court on Tuesday refused to order DNA testing of a child born to a minor after she was allegedly raped, saying the identity of the child's father is irrelevant to the case.

A bench of Justices DY Chandrachud and AS Bopanna dismissed the plea of the rape accused Mohd Salim, who is being tried in a juvenile court which too had rejected the request for DNA testing.

"Identity of the father has no relevance in the offence under 376 of IPC (rape).

What if he is not the father of the child, does it obviate rape? We don't allow DNA testing of the child just at the drop of a hat," the bench said "We are not inclined to entertain the Special Leave Petition under Article 136 of the Constitution," it said.

Advocate Ram Bhadauria, appearing for the accused, said that Salim has challenged the order of Allahabad High Court dated June 25, 2021 setting aside the order of Sessions Court at Sultanpur (Lucknow) allowing the DNA test of the child.

In his plea filed through advocate Robin Khokhar and Nishant Singla the accused has said it is being alleged that he is the father of the child.

The plea said that it is alleged that seven months ago from the date of FIR, rape was committed on the minor girl by the juvenile accused in front of his family members.

"Both the families of the accused and the victim are neighbhours and residents of the same village," it said.

The plea said that on December 17, 2017, an FIR was lodged after seven months of the alleged incident of rape by the mother of the minor girl at police station Kotwali Dehat of District Sultanpur in Uttar Pradesh against the accused and his family members.

During the criminal proceedings, the accused was declared a juvenile and his trial is on before the juvenile justice board.

Four other members of his family are undergoing trial in a Sessions Court.

The plea said that on January 21, 2021, the accused in an application before the juvenile justice board sought a DNA test of the child (aged about four years) born to the victim minor girl.

It said that the juvenile justice board dismissed the application on March 25, 2021 after which they moved the Sessions Court on June 25, 2021 which reversed the decision and ordered DNA testing.

However, the High Court allowed the criminal revision petition filed by the complainant against the Sessions Court order and set aside the order for DNA testing of the child.

The High Court said that there is no question of determining the paternity of the child involved in the case as the core issue is whether rape was committed on the prosecutrix by the accused or not.

It had said that there is no reason for the prosecutrix to let her child undergo the DNA test.