ASHOK KUMAR versus RAJ GUPTA & ORS.

[2021] 6 S.C.R. 1113

ASHOK KUMAR

RAJ GUPTA & ORS.

(Civil Appeal No. 6153 of 2021)

OCTOBER 1, 2021

[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]

Suit – Declaratory suit – Plaintiff, if can be subjected to DNAtest against will – Test of eminent need – Declaratory suit filed byappellant-plaintiff claiming ownership over coparcenary propertyof respondents-defendants’ parents –Defendants sought plaintiff’sDNA test – Application dismissed – Revision Petition – Allowed byHigh Court – On appeal, held: In the present case, the applicationto subject the plaintiff to DNA Test is in declaratory suit – Plaintiffhas already adduced evidence and is not interested to produceadditional evidence (DNA) to prove his case – It is now the turn ofthe defendants to adduce their evidence – Trial Court rightlyquestioned the timing of their application and dismissed it –Defendants cannot compel the plaintiff to adduce further evidencein support of their case – Appellant brought on record the evidencein his support which as per him adequately establishes his case –Nature of further evidence to be adduced by the plaintiff (byproviding DNA sample), need not be ordered by the Court at theinstance of the other side – In such litigation where the interests areto be balanced and the test of eminent need is not satisfied, theprotection of the right to privacy of the plaintiff should getprecedence – Impugned judgment set aside – Order passed by TrialCourt restored – Evidence Act, 1872 – ss.112, 114 – Constitution ofIndia.

Evidence Act, 1872 – s.112 – Held: Indian law leans towardslegitimacy and frowns upon bastardy – Presumption of legitimacyof child can only be displaced by strong preponderance ofevidence, and not merely by balance of probabilities.

Constitution of India – Right to privacy – DNA Tests – Test ofproportionality – Discussed.

DEF

1114SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1.1 In circumstances where other evidence isavailable to prove or dispute the relationship, the court shouldordinarily refrain from ordering blood tests. Such tests impingeupon the right of privacy of an individual and could also haveBmajor societal repercussions. Indian law leans towards legitimacyand frowns upon bastardy. The presumption in law of legitimacyof child cannot be lightly repelled. The presumption of legitimacyof child can only be displaced by strong preponderance ofevidence, and not merely by balance of probabilities. Normal ruleof evidence is that the burden is on the party that asserts theCpositive. But in instances where that is challenged, the burden isshifted to the party, that pleads the negative. Keeping in mindthe issue of burden of proof, in case like the present, the Court’sdecision should be rendered only after balancing the interests ofthe parties, i.e, the quest for truth, and the social and culturalDimplications involved therein. The possibility of stigmatizing aperson as bastard, the ignominy that attaches to an adult who,in the mature years of his life is shown to be not the biologicalson of his parents may not only be heavy cross to bear butwould also intrude upon his right of privacy. [Para 11.1, 11.2 and12][1120-F-G; 1121-D-E; 1122-A-C]EKamti Devi v. Poshi Ram 2001(5) SCC 311 : [2001] 3SCR 729 – relied on.1.2 DNA is unique to an individual (barring twins) and canbe used to identify person’s identity, trace familial linkages orFeven reveal sensitive health information. Whether person canbe compelled to provide sample for DNA in such matters canalso be answered considering the test of proportionality laid downin the unanimous decision of this Court in K.S Puttaswamy v. Unionof India, wherein the right to privacy has been declared aconstitutionally protected right in India. The Court shouldGtherefore examine the proportionality of the legitimate aims beingpursued, i.e whether the same are not arbitrary or discriminatory,whether they may have an adverse impact on the person and thatthey justify the encroachment upon the privacy and personalautonomy of the person, being subjected to the DNA Test. In theH

present case, the application to subject the Plaintiff to DNATest is in declaratory suit and the plaintiff has already adducedevidence and is not interested to produce additional evidence(DNA), to prove his case. It is now the turn of the defendants toadduce their evidence. At this stage, they are asking forsubjecting the plaintiff to DNA test. Questioning the timing ofthe application the trial Court dismissed the defendantsapplication. It was the correct order. In the yet to be decidedsuit, the plaintiff has led evidence through sworn affidavits of theRespondents, his School Leaving Certificates and his DomicileCertificate. Significantly, the respondent No.1, who is one of the3 siblings (defendants) had declared in her affidavit that the Plaintiffwas raised as son by her parents. Therefore, the nature of furtherevidence to be adduced by the plaintiff (by providing DNA sample),need not be ordered by the Court at the instance of the otherside. In such kind of litigation where the interest will have to bebalanced and the test of eminent need is not satisfied, theprotection of the right to privacy of the Plaintiff should getprecedence. [Para 13, 14][1122-C-H; 1123-A-B]

K.S Puttaswamy v. Union of India 2019 (1) SCC 1 :

[2018] 8 SCR 1 – followed.

Bhabani Prasad Jena vs. Convenor Secretary, OrissaState Commission for Women & Anr. (2010) 8 SCC 633

: [2010] 9 SCR 457 – relied on.

1.3 Additional issue to be resolved is whether refusal toundergo DNA Testing amounts to ‘other evidence’ or in otherwords, can an adverse inference be drawn in such situation. Theplaintiff has adduced his documentary evidence and is disinclinedto produce further evidence. He is conscious of the adverseconsequences of his refusal but is standing firm in refusing toundergo the DNA Test. His suit eventually will be decided onthe nature and quality of the evidence adduced. The issue ofdrawing adverse inference may also arise based on the refusal.The Court is to weigh both side’s evidence with all attendantcircumstances and then reach verdict in the Suit and this is notthe kind of case where DNA test of the plaintiff is withoutexception. The respondent cannot compel the plaintiff to adduce

Afurther evidence in support of the defendants’ case. In any case,it is the burden on litigating party to prove his case adducingevidence in support of his plea and the court should not compelthe party to prove his case in the manner, suggested by thecontesting party. The appellant (plaintiff) has brought on recordthe evidence in his support which in his assessment adequatelyBestablishes his case. His suit will succeed or fall with thoseevidence, subject of course to the evidence adduced by the otherside. When the plaintiff is unwilling to subject himself to the DNAtest, forcing him to undergo one would impinge on his personalliberty and his right to privacy. The impugned judgment is setCaside. The order passed by the Trial Court is restored. The suitto proceed accordingly. [Para 15-17][1123-B, D-H; 1124-A]

Sharda vs. Dharmpal 2003(4) SCC 493 : [2003] 3 SCR106; Banarsi Dass V. Teeku Dutta 2005(4) SCC 449 :[2005] 3 SCR 923 – relied on.DDipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365 :[2014] 11 SCR 553 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.6153 of2021.

From the Judgment and Order dated 08.03.2019 of the High CourtGof Punjab and Haryana at Chandigarh in Civil Revision No.8695 of 2017.

Ms. Sunieta Ojha, Adv. for the Appellant.

Rameshwar Singh Malik, Sr. Adv., Ms. Ritika Singh, Jitesh Sharma,Mrs. Mona K. Rajvanshi, Jitesh Malik, Jivesh Malik, Satish Kumar, Advs.for the Respondents.

The Judgment of the Court was delivered by

HRISHIKESH ROY, J.

1. Leave granted.

2. Heard Ms. Sunieta Ojha, the learned counsel for the appellant(plaintiff). Also heard Mr. Rameshwar Singh Malik, the learned SeniorCounsel appearing for the respondents (defendants).

3. The appellant Ashok Kumar filed CS No. 53/2013 seekingdeclaration of ownership of property, left behind by late Trilok ChandGupta and late Sona Devi. He arrayed the couple’s three daughters asdefendants in the Suit and claimed himself to be the son of Trilok ChandGupta and Sona Devi. In their written statement, the defendants deniedthat the plaintiff is the son of their parents (Trilok Chand Gupta and SonaDevi), and as such he is disentitled from any share in their parentalproperty. The defendants also set up an exclusive claim on the propertybased on the Will dated 16.4.1982 (registered on 25.4.1982) executedby their late mother Sona Devi.

4. In course of the proceedings before the learned Addl. CivilJudge (Sr. Division), Kalka, on closure of the plaintiff’s evidence, whenthe suit was slated for the other side’s evidence, the defendants filed anapplication on 19.4.2017 seeking direction from the Court to conduct aDeoxyribonucleic Acid Test (for short “DNA test”) of the plaintiff andeither of the defendants, to establish biological link of the plaintiff tothe defendants parents i.e. late Trilok Chand Gupta and Smt. SonaDevi.This application was opposed by the plaintiff with the projectionthat the defendants’ application is an abuse of the process of law andthat there are adequate evidences placed before the Court by the plaintiffto show that he is the son of Trilok Chand Gupta and Sona Devi. Theplaintiff in his opposition had specifically pleaded that the mother of theplaintiff and the defendants had submitted sworn affidavit before theMunicipal Committee, Kalka to transfer the Property No. 496, PahariBazar, Kalka in her name, mentioning the name of the plaintiff as herson. The copy of the concerned affidavit was duly placed on record inthe suit proceedings. Similarly, sworn affidavits of the three defendantsregarding transfer of the property No. 496, Pahari Bazar, Kalka, whereagain the plaintiff was admitted to be the son of late Trilok Chand Guptaand late Smt. Sona Devi, were also brought on record in the suit. Withsuch projection of admission on his linkage to the defendants’ parents,

Athe plaintiff opposed the DNA test suggested in the defendants’ applicationand offered to rely on the already adduced evidence to prove his case.

5. The defendants’ application for conducting the DNA test forthe plaintiff (at the cost of the defendants) was disposed of by the Courtby referring to the fact that the CS No. 53/2013 is for declaration ofBownership of property left behind by late Trilok Chand Gupta and lateSona Devi where the defendants have denied that the plaintiff is theirbrother or the son of their parents. The learned Judge noted that theevidence was already led by the plaintiff to prove his case and theapplication of the defendants was filed at that stage of the Suit when itwas their turn to lay their evidence. Taking these aspects into account,Cthe Court opined that onus is on the plaintiff to prove that he is acoparcener amongst the defendants by way of his birth in their familyand such burden does not shift to the defendants. Since the plaintiff hadrefused to give the DNA sample, the view taken was that the Courtcannot force the plaintiff to provide DNA sample and accordingly theDdefendants’ application came to be dismissed by the order dated28.11.2017 by the learned Trial Judge.

6. Thus aggrieved, the defendants moved the High Court by filinga Revision Petition against the order dated 28.11.2017. The parties wereheard and the learned judge upon due consideration observed that aEDNA test is double -edged weapon and is vital test to determine therelation of party and the plaintiff who is claiming to be the son of lateTrilok Chand Gupta and Sona Devi, should not shy away from the DNAtest suggested by the defendants. The plea for conducting the DNA teston the plaintiff was accordingly allowed by interfering with the contraryview taken by the trial Court. Taking exception to the revisional order ofFthe 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 defendantsfiled application on 19.4.2017 for subjecting the plaintiff to DNA test.The question therefore is, whether in declaratory suit where ownershipGover coparcenary property is claimed, the plaintiff, against his wishes,can be subjected to the DNA test. The related question is whether theplaintiff without subjecting himself to DNA test, is entitled to establishhis right over the property in question, through other material evidence.The timing of the application is equally relevant. The plaintiff has alreadyled evidence from his side to prove relationship between the parties andH

at this stage whether the High Court should have directed the plaintiff toundergo the DNA test. Another issue of concern is whether in theabsence of consent, party can be forced to provide sample for DNAtest.

8. This court in Banarsi Dass V. Teeku Dutta[1 ]had declared thatDNA test is not to be directed as matter of routine but only in deservingcases. petition was filed in that case for grant of succession certificatein respect of properties of the deceased. The Plaintiff claimed to be thedeceased’s daughter and the only Class 1 legal heir, under the HinduSuccession Act, 1956. The deceased had died intestate, leaving behind 5brothers. The Delhi High Court denied one of the brother’s applicationsfor conducting the DNA test of the daughter to establish her paternity.Justice Arijit Pasayat upheld the decision of the High Court in thefollowing passage of the judgment: -“10. In matters of this kind the court must have regard toSection 112 of the Evidence Act. This section is based on thewell-known maxim pater is est quem nuptiae demonstrant (heis the father whom the marriage indicates). The presumptionof legitimacy is this, that child born of married woman isdeemed to be legitimate, it throws on the person who isinterested in making out the illegitimacy, the whole burden ofproving it. The law presumes both that marriage ceremonyis valid, and that every person is legitimate. Marriage orfiliation (parentage) may be presumed, the law in generalpresuming against vice and immorality.”

9. In Bhabani Prasad Jena vs. Convenor Secretary, OrissaState Commission for Women &Anr.[2], Justice R.M. Lodha, whilereconciling two earlier decisions of this Court on the point, had rightfullyprescribed 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 laiddown that courts in India cannot order blood test as matterof course and such prayers cannot be granted to have rovinginquiry; there must be strong prima facie case and the court

1 2005(4) SCC 449

2 (2010) 8 SCC 633

Amust carefully examine as to what would be the consequenceof ordering the blood test. In Sharda [(2003) 4 SCC 493]while concluding that matrimonial court has power to ordera person to undergo medical test, it was reiterated that thecourt should exercise such power if the applicant has astrong prima facie case and there is sufficient material beforeBthe court. Obviously, therefore, any order for DNA test canbe given by the court only if strong prima facie case ismade out for such course.”

The learned Judge while noting the sensitivities involved with theissue of ordering DNA test, opined that the discretion of the courtCmust be exercised after balancing the interests of the parties and whethera DNA Test is needed for just decision in the matter and such directionsatisfies the test of “eminent need”.

10. The above decision in Bhabani Prasad Jena (supra) wasconsidered and approved in Dipanwita Roy vs. Ronobroto Roy[3], whereDthe Court noticed from the facts that the husband alleged infidelity againsthis wife and questioned the fatherhood of the child born to his wife. Inthose circumstances, when the wife had denied the charge of infidelity,the Court opined that but for the DNA test, it would be impossible forthe husband to establish the assertion made in the pleadings. In theseEfacts, the decision of the High Court to order for DNA testing wasapproved by the Supreme Court. Even then, Justice J.S. Khehar, writingfor the Division Bench, considered it appropriate to record caveat tothe effect that the wife may refuse to comply with the High Court directionfor the DNA test but in that case, presumption may be drawn againstthe party.F

11.1 In circumstances where other evidence is available to proveor dispute the relationship, the court should ordinarily refrain from orderingblood tests. This is because such tests impinge upon the right of privacyof an individual and could also have major societal repercussions. Indianlaw leans towards legitimacy and frowns upon bastardy. The presumptionGin law of legitimacy of child cannot be lightly repelled. This Court, inKamti Devi v. Poshi Ram[4], while determining the question of standardof proof required to displace the presumption in favor of paternity ofchild born during subsistence of valid marriage held:

3 (2015) 1 SCC 365H4 2001(5) SCC 311

“10. We may remember that Section 112 of the Evidence Actwas enacted at time when the modern scientificadvancements with deoxyribonucleic acid (DNA) as well asribonucleic acid (RNA) tests were not even in contemplationof the legislature. The result of genuine DNA test is said tobe scientifically accurate. But even that is not enough toescape from the conclusiveness of Section 112 of the Act e.g.if husband and wife were living together during the time ofconception but the DNA test revealed that the child was notborn to the husband, the conclusiveness in law would remainirrebuttable. This may look hard from the point of view of thehusband who would be compelled to bear the fatherhood ofa child of which he may be innocent. But even in such casethe law leans in favor of the innocent child from beingbastardised if his mother and her spouse were living togetherduring the time of conception. Hence the question regardingthe degree of proof of non-access for rebutting theconclusiveness must be answered in the light of what is meantby access or non-access as delineated above.”

11.2. The presumption of legitimacy of child can only be displacedby strong preponderance of evidence, and not merely by balance ofprobabilities. The material portion of the Court’s opinion is producedherein below:

“11 …..But at the same time the test of preponderance ofprobability is too light as that might expose many children tothe peril of being illegitimatized. If court declares that thehusband is not the father of his wife’s child, without tracingout its real father the fallout on the child is ruinous apartfrom all the ignominy visiting his mother. The bastardised child,when grows up would be socially ostracised and can easilyfall into wayward life. Hence, by way of abundant cautionand as matter of public policy, law cannot afford to allowsuch consequence befalling an innocent child on the strengthof mere tilting of probability. Its corollary is that the burdenof the plaintiff husband should be higher than the standardof preponderance of probabilities. The standard of proof insuch cases must at least be of degree in between the two asto ensure that there was no possibility of the child beingconceived through the plaintiff husband.”

ABC

A12. It was also the view of the Court that normal rule of evidenceis that the burden is on the party that asserts the positive. But in instanceswhere that is challenged, the burden is shifted to the party, that pleadsthe negative. Keeping in mind the issue of burden of proof, it would besafe to conclude that in case like the present, the Court’s decisionshould be rendered only after balancing the interests of the parties, i.e,Bthe quest for truth, and the social and cultural implications involved therein.The possibility of stigmatizing person as bastard, the ignominy thatattaches to an adult who, in the mature years of his life is shown to benot the biological son of his parents may not only be heavy cross tobear but would also intrude upon his right of privacy.C

13. DNA is unique to an individual (barring twins) and can beused to identify person’s identity, trace familial linkages or even revealsensitive health information. Whether person can be compelled toprovide sample for DNA in such matters can also be answeredconsidering the test of proportionality laid down in the unanimous decisionDof this Court in K.S Puttaswamy v. Union of India[5], wherein the rightto privacy has been declared constitutionally protected right in India.The Court should therefore examine the proportionality of the legitimateaims being pursued, i.e whether the same are not arbitrary ordiscriminatory, whether they may have an adverse impact on the personEand that they justify the encroachment upon the privacy and personalautonomy of the person, being subjected to the DNA Test. It cannot beoverlooked that in the present case, the application to subject the Plaintiffto DNA Test is in declaratory suit and the plaintiff has already adducedevidence and is not interested to produce additional evidence (DNA), toprove his case. It is now the turn of the defendants to adduce theirFevidence. At this stage, they are asking for subjecting the plaintiff to aDNA test. Questioning the timing of the application the trial Courtdismissed the defendants application and we feel that it was the correctorder.

14. In the yet to be decided suit, the plaintiff has led evidenceGthrough sworn affidavits of the Respondents, his School LeavingCertificates and his Domicile Certificate. Significantly, the respondentNo.1, who is one of the 3 siblings (defendants) had declared in heraffidavit that the Plaintiff was raised as son by her parents. Therefore,

H5 2019 (1) SCC 1

the nature of further evidence to be adduced by the plaintiff (by providingDNA sample), need not be ordered by the Court at the instance of theother side. In such kind of litigation where the interest will have to bebalanced and the test of eminent need is not satisfied our consideredopinion is that the protection of the right to privacy of the Plaintiff shouldget precedence.

15. Having answered these questions, additional issue to beresolved is whether refusal to undergo DNA Testing amounts to ‘otherevidence’ or in other words, can an adverse inference be drawn in suchsituation. In Sharda vs. Dharmpal[6] three judges bench in the opinionwritten by Justice S.B. Sinha rightly observed in paragraph 79 that“if despite an order passed by the court, person refuses to submithimself to such medical examination, strong case for drawing anadverse inference” can be made out against the person within the ambitof Section 114 of the Evidence Act. The plaintiff here has adduced hisdocumentary evidence and is disinclined to produce further evidence.He is conscious of the adverse consequences of his refusal but is standingfirm in refusing to undergo the DNA Test. His suit eventually will bedecided on the nature and quality of the evidence adduced. The issue ofdrawing adverse inference may also arise based on the refusal. TheCourt is to weigh both side’s evidence with all attendant circumstancesand then reach verdict in the Suit and this is not the kind of case wherea DNA test of the plaintiff is without exception.

16. The respondent cannot compel the plaintiff to adduce furtherevidence in support of the defendants’ case. In any case, it is the burdenon litigating party to prove his case adducing evidence in support of hisplea and the court should not compel the party to prove his case in themanner, suggested by the contesting party.

17. The appellant (plaintiff) as noted earlier, has brought on recordthe evidence in his support which in his assessment adequately establisheshis case. His suit will succeed or fall with those evidence, subject ofcourse to the evidence adduced by the other side. When the plaintiff isunwilling to subject himself to the DNA test, forcing him to undergo onewould impinge on his personal liberty and his right to privacy. Seen fromthis perspective, the impugned judgment merits interference and is setaside. In consequence thereof, the order passed by the learned Trial

ACourt on 28.11.2017 is restored. The suit is ordered to proceedaccordingly.

18. With the above order, the appeal stands allowed leaving theparties to bear their respective cost.

BDivya Pandey

Appeal allowed.