New Delhi: The Allahabad High Court last month rejected an accused man’s plea for DNA testing of the rape survivor and her child. The plea had come in the middle of the trial, when five prosecution witnesses had already testified.
The court observed that a DNA test in a rape case cannot be ordered as a matter of course, stressing the “serious social consequences” such a direction could have. It held that in offences under Section 376 of Indian Penal Code, paternity is not always central. Only in “cast-iron” cases, where facts leave no alternative, should such intrusive testing be permitted.
“The DNA test of the prosecutrix and her child has serious social consequences. Only when compelling and unavoidable circumstances have emerged on record, which make out a cast-iron case for directing (a) DNA test of the prosecutrix and her child that (the) Court can direct for such a test,” the bench said.
When a rape case results in childbirth, one piece of scientific evidence that often dominates the courtroom debate is the DNA test.
For the accused, a negative report can mean proof of “non-access”. For victims, it may help establish the paternity of a child born of sexual violence. But Indian courts have not spoken in one voice on whether such tests should be ordered, or how much weight they should carry in deciding guilt.
A 2014 study by academic Dipa Dube at IIT Kharagpur noted that courts relied on DNA evidence to exonerate the accused in about 42 percent of the cases. Her research also found that when oral testimony was corroborated by DNA, conviction was more likely. Without DNA, the outcome often depended on whether the victim’s testimony was deemed credible. In circumstantial cases or gang rape prosecutions, DNA played a decisive role.
“In cases where the offence has led to childbirth, DNA is significant to establish the paternity of the child and, thereby the links of the accused to the alleged crime in question,” Dube concluded.
What the law says
India does not have a dedicated statute directly governing the use of DNA tests in rape trials. Instead, courts rely on principles under the Evidence Act and precedents.
Section 376 of the IPC defines rape, which is usually proved by establishing lack of consent, not necessarily by proving paternity (even in case of childbirth).
The Supreme Court has repeatedly cautioned against mechanical use of DNA. In Goutam Kundu vs State of West Bengal (1993), it said no one can be compelled to give a blood sample. In Bhabani Prasad Jena vs Convenor Secretary, Orissa State Commission for Women (2010), it held that a test should be ordered only when there is a “compelling and eminent necessity”. The tension, therefore, lies between scientific truth and legal caution.
Calcutta HC: Negative DNA report isn’t innocence
In May 2024, the Calcutta High Court was confronted with a case where a man accused of rape sought discharge after a DNA report confirmed he was not the biological father of the child born to the victim.
The court refused. It held that while DNA evidence may be important, it is not conclusive proof of rape or its absence. The reasoning was clear—rape is not about paternity alone.
“The DNA report cannot override the testimony of the victim, which, if found credible, is sufficient to establish a prima facie case,” the court said.
This ruling underlined a key distinction: DNA may confirm or deny biological relationships, but it cannot by itself establish whether intercourse was consensual or forced.
Calcutta HC: DNA tests when ‘non-access’ claimed
Just months later, another Calcutta High Court bench in Lob Das vs State of West Bengal (December 2024) took the opposite view.
Here, the accused had insisted that he had no access to the prosecutrix during the period when the pregnancy occurred. To test this defence, the court directed a DNA examination of the child.
“If the DNA analysis excludes the accused, it will directly corroborate his plea of non-access and will be a material circumstance in his favour,” the court reasoned.
In this case, the accused’s right to defend himself outweighed the general caution against intrusive testing.
Deciding factors that sway courts
From the Allahabad High Court warning against “casual” orders for DNA testing, to the Calcutta High Court refusing to discharge an accused despite a negative paternity result, the law remains unsettled.
A close look at judgments shows why outcomes differ so sharply. Much depends on who makes the request. When the accused seek DNA tests to claim non-access, some courts, like in Lob Das, allow it. When victims or the prosecution resist, courts hesitate, citing stigma and dignity concerns.
The nature of allegations also matters. If the dispute is about access or paternity, DNA gains importance. If the issue is consent, courts often view DNA as less determinative. Repeatedly, judges warn against the stigma of branding a child “illegitimate”.
The prevailing test, as set out in SC’s Bhabani Prasad Jena verdict, is whether DNA is “eminently needed”. That threshold of necessity guides most decisions.
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Supreme Court’s guiding voice
The Supreme Court’s role looms large in this arena. Its rulings in Goutam Kundu (1993) and Bhabani Prasad Jena (2010) laid down the principle that DNA tests should not be ordered routinely.
In Dipanwita Roy vs Ronobroto Roy (2015), dealing with a matrimonial dispute, the top court allowed DNA testing of a child to resolve a wife’s allegation of infidelity, balancing the husband’s right to a fair defence with the wife’s privacy.
Though not all these cases involved criminality or rape, their principles echo in criminal trials: DNA is powerful tool, but must be wielded cautiously.
Protecting children from overreach: Article 21
The Kerala High Court took the debate in another direction in Suo Motu vs State of Kerala (2024).
Justice K. Babu halted orders by six trial courts that had directed collection of DNA samples from adopted children in rape cases. Such directions, the High Court said, were “unnecessary and invasive”. Adoption creates a legal parent-child relationship, and forcing adopted children into DNA tests in unrelated criminal cases violated “privacy and dignity”, the court held.
This underscored that DNA testing is not a limitless tool. It must be justified by direct relevance to the case.
Separately, the Allahabad High Court’s August 2025 ruling drew upon Supreme Court judgments in Ashok Kumar and Inayath Ali to hold that the child of a rape victim is not a party in ongoing criminal appeals. The child’s status and paternity, it said, were not relevant issues that required examination.
Ordering a DNA test of the infant would infringe the child’s fundamental right to privacy, the court held, a right firmly affirmed in the Supreme Court’s Puttaswamy (2018) judgment.
What lawyers say
Advocate Subhajit Mukherjee, who often deals with such cases in Kolkata, told ThePrint, “While it is true that in most rape cases direct evidence is not available, we have been compelled to rely on circumstantial evidence. Most certainly in such cases, DNA testing of the child would aid the process of justice.”
But courts, he said, have consistently “endeavoured to foresee what impact such a test will have on the right to privacy of the child and his overall benefit”.
“A child’s future shall not be lost in the quest for his paternity,” Mukherjee added. “Even if an accused is able to prove that he is not the biological father, that per se will not disprove the allegations of rape. Therefore, in cases of sexual offences the child shall not be subjected to compulsory DNA testing.”
Delhi-based advocate Urja Pandey struck a different note. “From a lawyer’s standpoint, ordering DNA tests in rape prosecutions, especially where a child is born, should be strictly avoided,” she said.
“The core issue in a rape trial is whether the act was consensual or forced. A DNA test cannot answer that, it can at best establish paternity. To rely on it is to misunderstand the law and distract from what truly matters: The survivor’s testimony and corroborative evidence under the IPC and the Evidence Act.”
She added, “Compelling DNA tests of a child violates their fundamental right to privacy under Article 21, branding them with a stigma they never consented to bear. Justice in rape cases cannot be achieved through shortcuts. Making DNA tests routine not only distorts trial focus but also risks grave injustices”.
No straight formula
Placed side by side, the rulings form a contradictory landscape. In 2025, the Allahabad High Court rejected a DNA request, citing dignity and privacy. In May 2024, the Calcutta High Court said a negative DNA report is not enough to discharge an accused. In December 2024, another Calcutta bench allowed DNA testing to verify non-access. In 2023, the Kerala High Court stopped DNA collection from adopted children.
For three decades, the Supreme Court has warned against “casual” use of DNA in criminal trials. But across India, high courts continue to interpret that caution in strikingly different ways. The result is no set formula: Victims, accused, and trial courts cannot know with certainty how higher courts will treat requests for DNA evidence.
(Edited by Viny Mishra)