[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6153 OF 2021
(Arising out of SLP(C) No.11663 of 2019)
ASHOK KUMAR …APPELLANT(S)
VERSUS
RAJ GUPTA & ORS. …RESPONDENT(S)
J U D G M E N T
Hrishikesh Roy, J.
Leave granted.
2. Heard Ms. Sunieta Ojha, the learned counsel for the
appellant (plaintiff). Also heard Mr. Rameshwar Singh Malik,
the learned Senior Counsel appearing for the respondents
(defendants).
3. The appellant Ashok Kumar filed CS No. 53/2013 seeking
declaration of ownership of property, left behind by late
Trilok Chand Gupta and late Sona Devi. He arrayed the
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couple’s three daughters as defendants in the Suit and
claimed himself to be the son of Trilok Chand Gupta and
Sona Devi. In their written statement, the defendants denied
that the plaintiff is the son of their parents (Trilok Chand
Gupta and Sona Devi), and as such he is disentitled from any
share in their parental property. The defendants also set
up an exclusive claim on the property based on the Will
dated 16.4.1982 (registered on 25.4.1982) executed by their
late mother Sona Devi.
4. In course of the proceedings before the learned Addl.
Civil Judge (Sr. Division), Kalka, on closure of the
plaintiff’s evidence, when the suit was slated for the other
side’s evidence, the defendants filed an application on
19.4.2017 seeking direction from the Court to conduct a
Deoxyribonucleic Acid Test (for short “DNA test”) of the
plaintiff and either of the defendants, to establish a
biological link of the plaintiff to the defendants parents
i.e. late Trilok Chand Gupta and Smt. Sona Devi.This
application was opposed by the plaintiff with the projection
that the defendants’ application is an abuse of the process
of law and that there are adequate evidences placed before
the Court by the plaintiff to show that he is the son of
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Trilok Chand Gupta and Sona Devi. The plaintiff in his
opposition had specifically pleaded that the mother of the
plaintiff and the defendants had submitted sworn affidavit
before the Municipal Committee, Kalka to transfer the
Property No. 496, Pahari Bazar, Kalka in her name,
mentioning the name of the plaintiff as her son. The copy of
the concerned affidavit was duly placed on record in the
suit proceedings. Similarly, sworn affidavits of the three
defendants regarding transfer of the property No. 496,
Pahari Bazar, Kalka, where again the plaintiff was admitted
to be the son of late Trilok Chand Gupta and late Smt. Sona
Devi, were also brought on record in the suit. With such
projection of admission on his linkage to the defendants’
parents, the plaintiff opposed the DNA test suggested in the
defendants’ application and offered to rely on the already
adduced evidence to prove his case.
5. The defendants’ application for conducting the DNA test
for the plaintiff (at the cost of the defendants) was
disposed of by the Court by referring to the fact that the
CS No. 53/2013 is for declaration of ownership of property
left behind by late Trilok Chand Gupta and late Sona Devi
where the defendants have denied that the plaintiff is their
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brother or the son of their parents. The learned Judge noted
that the evidence was already led by the plaintiff to prove
his case and the application of the defendants was filed at
that stage of the Suit when it was their turn to lay their
evidence. Taking these aspects into account, the Court
opined that onus is on the plaintiff to prove that he is a
coparcener amongst the defendants by way of his birth in
their family and such burden does not shift to the
defendants. Since the plaintiff had refused to give the DNA
sample, the view taken was that the Court cannot force the
plaintiff to provide DNA sample and accordingly the
defendants’ application came to be dismissed by the order
dated 28.11.2017 by the learned Trial Judge.
6. Thus aggrieved, the defendants moved the High Court by
filing a Revision Petition against the order dated
28.11.2017. The parties were heard and the learned judge
upon due consideration observed that a DNA test is a double
-edged weapon and is a vital test to determine the relation
of a party and the plaintiff who is claiming to be the son
of late Trilok Chand Gupta and Sona Devi, should not shy
away from the DNA test suggested by the defendants. The plea
for conducting the DNA test on the plaintiff was accordingly
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allowed by interfering with the contrary view taken by the
trial Court. Taking exception to the revisional order of the
High Court, the aggrieved plaintiff is before this Court.
7. The pleadings were exchanged quite early in the Civil
Suit No. 53/2013, but only after closure of the plaintiff’s
evidence, the defendants filed application on 19.4.2017 for
subjecting the plaintiff to a DNA test. The question
therefore is, whether in a declaratory suit where ownership
over coparcenary property is claimed, the plaintiff, against
his wishes, can be subjected to the DNA test. The related
question is whether the plaintiff without subjecting himself
to a DNA test, is entitled to establish his right over the
property in question, through other material evidence. The
timing of the application is equally relevant. The plaintiff
has already led evidence from his side to prove relationship
between the parties and at this stage whether the High Court
should have directed the plaintiff to undergo the DNA test.
Another issue of concern is whether in the absence of
consent, a party can be forced to provide sample for a DNA
test.
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8. This court in Banarsi Dass V. Teeku Dutta1 had declared
that DNA test is not to be directed as a matter of routine
but only in deserving cases. A petition was filed in that
case for grant of succession certificate in respect of
properties of the deceased. The Plaintiff claimed to be the
deceased’s daughter and the only Class 1 legal heir, under
the Hindu Succession Act, 1956. The deceased had died
intestate, leaving behind 5 brothers. The Delhi High Court
denied one of the brother’s applications for conducting the
DNA test of the daughter to establish her paternity. Justice
Arijit Pasayat upheld the decision of the High Court in the
following passage of the judgment: -
“10. In matters of this kind the court must
have regard to Section 112 of the Evidence
Act. This section is based on the well-known
maxim pater is est quem nuptiae
demonstrant (he is the father whom the
marriage indicates). The presumption of
legitimacy is this, that a child born of a
married woman is deemed to be legitimate, it
throws on the person who is interested in
making out the illegitimacy, the whole burden
of proving it. The law presumes both that a
marriage ceremony is valid, and that every
person is legitimate. Marriage or filiation
(parentage) may be presumed, the law in
general presuming against vice and
immorality.”
1 2005(4) SCC 449
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9. In Bhabani Prasad Jena vs. Convenor Secretary, Orissa
State Commission for Women &Anr.2, Justice R.M. Lodha, while
reconciling two earlier decisions of this Court on the
point, had rightfully prescribed that;
“23. There is no conflict in the two
decisions of this Court, namely, Goutam
Kundu [(1993) 3 SCC 418 : 1993 SCC (Cri) 928]
and Sharda [(2003) 4 SCC 493] . In Goutam
Kundu [(1993) 3 SCC 418 : 1993 SCC (Cri) 928]
it has been laid down that courts in India
cannot order blood test as a matter of course
and such prayers cannot be granted to have
roving inquiry; there must be strong prima
facie case and the court must carefully
examine as to what would be the consequence
of ordering the blood test. In Sharda [(2003)
4 SCC 493] while concluding that a
matrimonial court has power to order a person
to undergo a medical test, it was reiterated
that the court should exercise such a power
if the applicant has a strong prima facie
case and there is sufficient material before
the court. Obviously, therefore, any order
for DNA test can be given by the court only
if a strong prima facie case is made out for
such a course.”
The learned Judge while noting the sensitivities
involved with the issue of ordering a DNA test, opined that
the discretion of the court must be exercised after
balancing the interests of the parties and whether a DNA
2(2010) 8 SCC 633
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Test is needed for a just decision in the matter and such a
direction satisfies the test of “eminent need”.
10. The above decision in Bhabani Prasad Jena (supra) was
considered and approved in Dipanwita Roy vs. Ronobroto Roy3,
where the Court noticed from the facts that the husband
alleged infidelity against his wife and questioned the
fatherhood of the child born to his wife. In those
circumstances, when the wife had denied the charge of
infidelity, the Court opined that but for the DNA test, it
would be impossible for the husband to establish the
assertion made in the pleadings. In these facts, the
decision of the High Court to order for DNA testing was
approved by the Supreme Court. Even then, Justice J.S.
Khehar, writing for the Division Bench, considered it
appropriate to record a caveat to the effect that the wife
may refuse to comply with the High Court direction for the
DNA test but in that case, presumption may be drawn against
the party.
11.1 In circumstances where other evidence is available to
prove or dispute the relationship, the court should
ordinarily refrain from ordering blood tests. This is
3(2015) 1 SCC 365
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because such tests impinge upon the right of privacy of an
individual and could also have major societal repercussions.
Indian law leans towards legitimacy and frowns upon
bastardy. The presumption in law of legitimacy of a child
cannot be lightly repelled. This Court, in Kamti Devi v.
Poshi Ram4, while determining the question of standard of
proof required to displace the presumption in favor of
paternity of child born during subsistence of valid marriage
held:
“10. We may remember that Section 112 of the
Evidence Act was enacted at a time when the
modern scientific advancements with
deoxyribonucleic acid (DNA) as well as
ribonucleic acid (RNA) tests were not even in
contemplation of the legislature. The result
of a genuine DNA test is said to be
scientifically accurate. But even that is not
enough to escape from the conclusiveness of
Section 112 of the Act e.g. if a husband and
wife were living together during the time of
conception but the DNA test revealed that the
child was not born to the husband, the
conclusiveness in law would remain
irrebuttable. This may look hard from the
point of view of the husband who would be
compelled to bear the fatherhood of a child of
which he may be innocent. But even in such a
case the law leans in favor of the innocent
child from being bastardised if his mother and
her spouse were living together during the
time of conception. Hence the question
regarding the degree of proof of non-access
for rebutting the conclusiveness must be
4 2001(5) SCC 311
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answered in the light of what is meant by
access or non-access as delineated above.”
11.2. The presumption of legitimacy of a child can only be
displaced by strong preponderance of evidence, and not
merely by balance of probabilities. The material portion of
the Court’s opinion is produced herein below:
“11 …..But at the same time the test of
preponderance of probability is too light as
that might expose many children to the peril
of being illegitimatized. If a court declares
that the husband is not the father of his
wife's child, without tracing out its real
father the fallout on the child is ruinous
apart from all the ignominy visiting his
mother. The bastardised child, when grows up
would be socially ostracised and can easily
fall into wayward life. Hence, by way of
abundant caution and as a matter of public
policy, law cannot afford to allow such
consequence befalling an innocent child on the
strength of a mere tilting of probability. Its
corollary is that the burden of the plaintiff
husband should be higher than the standard of
preponderance of probabilities. The standard
of proof in such cases must at least be of a
degree in between the two as to ensure that
there was no possibility of the child being
conceived through the plaintiff husband.”
12. It was also the view of the Court that normal rule of
evidence is that the burden is on the party that asserts the
positive. But in instances where that is challenged, the
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burden is shifted to the party, that pleads the negative.
Keeping in mind the issue of burden of proof, it would be
safe to conclude that in a case like the present, the
Court’s decision should be rendered only after balancing the
interests of the parties, i.e, the quest for truth, and the
social and cultural implications involved therein. The
possibility of stigmatizing a person as a bastard, the
ignominy that attaches to an adult who, in the mature years
of his life is shown to be not the biological son of his
parents may not only be a heavy cross to bear but would also
intrude upon his right of privacy.
13. DNA is unique to an individual (barring twins) and can
be used to identify a person’s identity, trace familial
linkages or even reveal sensitive health information.
Whether a person can be compelled to provide a sample for
DNA in such matters can also be answered considering the
test of proportionality laid down in the unanimous decision
of this Court in K.S Puttaswamy v. Union of India5, wherein
the right to privacy has been declared a constitutionally
protected right in India. The Court should therefore examine
the proportionality of the legitimate aims being pursued,
52019 (1) SCC 1
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i.e whether the same are not arbitrary or discriminatory,
whether they may have an adverse impact on the person and
that they justify the encroachment upon the privacy and
personal autonomy of the person, being subjected to the DNA
Test. It cannot be overlooked that in the present case, the
application to subject the Plaintiff to a DNA Test is in a
declaratory suit and the plaintiff has already adduced
evidence and is not interested to produce additional
evidence (DNA), to prove his case. It is now the turn of the
defendants to adduce their evidence. At this stage, they
are asking for subjecting the plaintiff to a DNA test.
Questioning the timing of the application the trial Court
dismissed the defendants application and we feel that it was
the correct order.
14. In the yet to be decided suit, the plaintiff has led
evidence through sworn affidavits of the Respondents, his
School Leaving Certificates and his Domicile Certificate.
Significantly, the respondent No.1, who is one of the 3
siblings (defendants) had declared in her affidavit that the
Plaintiff was raised as a son by her parents. Therefore,
the nature of further evidence to be adduced by the
plaintiff (by providing DNA sample), need not be ordered by
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the Court at the instance of the other side. In such kind of
litigation where the interest will have to be balanced and
the test of eminent need is not satisfied our considered
opinion is that the protection of the right to privacy of
the Plaintiff should get precedence.
15. Having answered these questions, additional issue to be
resolved is whether refusal to undergo DNA Testing amounts
to ‘other evidence’ or in other words, can an adverse
inference be drawn in such situation. In Sharda vs.
Dharmpal6 a three judges bench in the opinion written by
Justice S.B. Sinha rightly observed in paragraph 79 that
”if despite an order passed by the court, a person refuses
to submit himself to such medical examination, a strong
case for drawing an adverse inference” can be made out
against the person within the ambit of Section 114 of the
Evidence Act. The plaintiff here has adduced his documentary
evidence and is disinclined to produce further evidence. He
is conscious of the adverse consequences of his refusal but
is standing firm in refusing to undergo the DNA Test. His
suit eventually will be decided on the nature and quality of
6 2003(4) SCC 493
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the evidence adduced. The issue of drawing adverse inference
may also arise based on the refusal. The Court is to weigh
both side’s evidence with all attendant circumstances and
then reach a verdict in the Suit and this is not the kind of
case where a DNA test of the plaintiff is without exception.
16. The respondent cannot compel the plaintiff to adduce
further evidence in support of the defendants’ case. In any
case, it is the burden on a litigating party to prove his
case adducing evidence in support of his plea and the court
should not compel the party to prove his case in the manner,
suggested by the contesting party.
17. The appellant (plaintiff) as noted earlier, has brought
on record the evidence in his support which in his
assessment adequately establishes his case. His suit will
succeed or fall with those evidence, subject of course to
the evidence adduced by the other side. When the plaintiff
is unwilling to subject himself to the DNA test, forcing him
to undergo one would impinge on his personal liberty and his
right to privacy. Seen from this perspective, the impugned
judgment merits interference and is set aside. In
consequence thereof, the order passed by the learned Trial
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Court on 28.11.2017 is restored. The suit is ordered to
proceed accordingly.
18. With the above order, the appeal stands allowed leaving
the parties to bear their respective cost.
………………………………………………………J.
[R. SUBHASH REDDY]
………………………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
OCTOBER 1, 2021
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