Suit – Declaratory suit – Plaintiff, if can be subjected to DNA test against will – Test of eminent need – Declaratory suit filed by appellant-plaintiff claiming ownership over coparcenary property of respondents-defendants’ parents –Defendants sought plaintiff ’s DNA test – Application dismissed – Revision Petition – Allowed by High Court – On appeal, held: In the present case, the application to subject the plaintiff to a DNA Test is in a declaratory suit – 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 – Trial Court rightly questioned the timing of their application and dismissed it – Defendants cannot compel the plaintiff to adduce further evidence in support of their case – Appellant brought on record the evidence in his support which as per him adequately establishes his case – Nature of further evidence to be adduced by the plaintiff (by providing DNA sample), need not be ordered by the Court at the instance of the other side – In such litigation where the interests are to be balanced and the test of eminent need is not satisfied, the protection of the right to privacy of the plaintiff should get precedence – Impugned judgment set aside – Order passed by Trial Court restored – Evidence Act, 1872 – ss.112, 114 – Constitution of India.
Evidence Act, 1872 – s.112 – Held: Indian law leans towards legitimacy and frowns upon bastardy – Presumption of legitimacy of a child can only be displaced by strong preponderance of evidence, and not merely by balance of probabilities.
Constitution of India – Right to privacy – DNA Tests – Test of proportionality – Discussed.
Allowing the appeal, the Court
HELD: 1.1 In circumstances where other evidence is available to prove or dispute the relationship, the court should ordinarily refrain from ordering blood tests. 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. The presumption of legitimacy of a child can only be displaced by strong preponderance of evidence, and not merely by balance of probabilities. Normal rule of evidence is that the burden is on the party that asserts the positive. But in instances where that is challenged, the burden is shifted to the party, that pleads the negative. Keeping in mind the issue of burden of proof, 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. [Para 11.1, 11.2 and 12][1120-F-G; 1121-D-E; 1122-A-C]
Kamti Devi v. Poshi Ram 2001(5) SCC 311 : [2001] 3 SCR 729 – relied on.
1.2 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 India, 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, 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. 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. It was the correct order. 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 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, the protection of the right to privacy of the Plaintiff should get precedence. [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, Orissa State Commission for Women & Anr. (2010) 8 SCC 633 : [2010] 9 SCR 457 – relied on.
1.3 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. The plaintiff 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 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. 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. The appellant (plaintiff) 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. The impugned judgment is set aside. The order passed by the Trial Court is restored. The suit to proceed accordingly. [Para 15-17][1123-B, D-H; 1124-A] Sharda vs. Dharmpal 2003(4) SCC 493 : [2003] 3 SCR 106; Banarsi Dass V. Teeku Dutta 2005(4) SCC 449 : [2005] 3 SCR 923 – relied on.
Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365 : [2014] 11 SCR 553 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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