Ashok Kumar vs Smt. Raj Gupta

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. Signature Not Verified The appellant Ashok Kumar filed CS No. 53/2013 seeking Digitally signed by Rachna Date: 2021.10.01 15:10:07 IST Reason: declaration of ownership of property, left behind by late

Trilok Chand Gupta and late Sona Devi. He arrayed the

Page 1 of 15 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

Page 2 of 15 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

Page 3 of 15 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

Page 4 of 15 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.

Page 5 of 15

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

Page 6 of 15

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

Page 7 of 15 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

Page 8 of 15 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

Page 9 of 15 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

Page 10 of 15 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

Page 11 of 15 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

Page 12 of 15 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

Page 13 of 15 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

Page 14 of 15 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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